TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT GOSTENCNIK
C2021/8533
s.739 - Application to deal with a dispute
Marina Zhang
and
Parks Victoria
(C2021/8533)
Parks Victoria Enterprise Agreement 2016
Melbourne
10.00 AM, FRIDAY, 18 MARCH 2022
Continued from 25/01/2022
PN1
THE DEPUTY PRESIDENT: Yes, good morning, Ms Zhang. You're appearing for yourself this morning?
PN2
MS ZHANG: Yes. Good morning.
PN3
THE DEPUTY PRESIDENT: Yes, good morning. Mr Harrington, you're appearing for the respondent?
PN4
MR HARRINGTON: Yes, I am, Deputy President. And I understand that the issue of permission to appear has been determined. We received an email last evening.
PN5
THE DEPUTY PRESIDENT: Indeed. Before we begin the arbitration there's just a matter that I wanted to raise quickly with the parties and it arises, Mr Harrington, out of what is said at paragraph 35 of your outline. I have sent this through or the parties through a copy of the Full Bench decision in Simplot which runs contrary to that submission, and it's an issue that I raise with the parties, noting that you weren't there at the time, Mr Harrington, during the conciliation conference which I conducted on the 25 January and it became apparent, by that stage, that the substance of the dispute was effectively the refusal by Parks Victoria on 7 January 2022 to the applicant's request for flexible work arrangements.
PN6
And during the course of discussions in order to tackle the real issue in dispute the application lodged by the applicant, under the 2016 agreement, on or about the 15 December was amended so that it's a dispute in relation to that issue arising under the 2021 agreement and the directions that I made in respect of the issues reflect that.
PN7
So I just wanted to raise that at the outset. It is apparent to them, Mr Harrington, perhaps you weren't probably instructed about that aspect of - - -
PN8
MR HARRINGTON: No. I have to take some responsibility for the position taken. I won't blame other people. What I will say about it is that I work in first principles, if you like, from the general or about accrued rights.
PN9
THE DEPUTY PRESIDENT: Yes.
PN10
MR HARRINGTON: Properly - well, I'll have to admit this. In the sense properly looking at the Act of section 50(a) and then following the certain authorities that decisions in this Commission that have dealt with the matter. So I wasn't aware of the decision that you sent through this morning - Simplot [2020] FWCFB, 50-54. I accept section 58 says what it says about only one imposed agreement can apply. Although, I'm not entirely convinced that's the entire answer to it. But given this is a first instance determination the Full Bench has said at paragraph 18 of the Simplot decision the Commission has no jurisdiction to deal with the dispute under a disputes procedure in an enterprise agreement that has ceased to operate. That's the piece - - -
PN11
THE DEPUTY PRESIDENT: Yes, that's right.
PN12
MR HARRINGTON: - - - or sentence and paragraph.
PN13
THE DEPUTY PRESIDENT: Yes.
PN14
MR HARRINGTON: Unless that's fundamentally or profoundly wrong, arguably you are bound by that observation. And then in my quick reading - - -
PN15
THE DEPUTY PRESIDENT: Not only am I bound by it but I agree with acting - I was the author of it.
PN16
MR HARRINGTON: Your name is - sorry - so I accept that. I must say I didn't even then go to look who had determined it. I just knew it was a Full Bench. But then it - the other part of the logic that seems rather compelling is at 24 of that decision that this is the accrued right of this which is where I started from. And, again, I can't impugn the reasoning, the logic, the reasoning pathway of paragraph 24, the fifth reason that the Full Bench gave.
PN17
So, in those circumstances, the correct position at law and under the Statute seems to be set out in the Simplot Australia decision. And I cannot and do not press paragraph 35 of the respondent's outline of argument. I raised it coming in the fresh eyes thinking, well, that's a bit odd, Deputy President, simply because in this instance there was quite a significant textural change to clause 60 as between the two agreements. And the question of which agreement is critical because it determines how you will go about your (indistinct).
PN18
THE DEPUTY PRESIDENT: I understand.
PN19
MR HARRINGTON: So I accept because I looked at the 2021 agreement very closely. And we have made submissions on the 2021 agreement.
PN20
THE DEPUTY PRESIDENT: Yes.
PN21
MR HARRINGTON: I accept that that's the agreement that we're proceeding under.
PN22
THE DEPUTY PRESIDENT: All right. Very good. Thank you for that. Now, Ms Zhang, you filed several documents. Relevantly, you filed an outline of submissions and some response materials to both the submissions made by Parks Victoria and some evidence that is to be given by the Parks Victoria CFO but you haven't filed for yourself a witness statement. Do I take it from that you're not proposing to give evidence?
PN23
MS ZHANG: I have filed the evidence. Because the evidence - - -
PN24
THE DEPUTY PRESIDENT: You filed some documents. Yes, I understand that. But you haven't prepared a witness statement for yourself.
PN25
MS ZHANG: (Indistinct) I thought the (indistinct) statement was - - -
PN26
THE DEPUTY PRESIDENT: I guess what I'm getting at is this. Do I take it that in so far as your written submissions are concerned in those submissions where you make assertions of fact as opposed to contentions about the law that that's the evidence you want to lead or that's the evidence you want to give?
PN27
MS ZHANG: I have put the issues of law. Response to respondent's outline of argument.
PN28
THE DEPUTY PRESIDENT: Yes. You also make a number of assertions of law in your submissions which you filed at the first instance. So the document which you say in response to directions, 'I hereby make the following submissions.' And you make several contentions.
PN29
MS ZHANG: Yes.
PN30
THE DEPUTY PRESIDENT: About the operation of the Privacy Act.
PN31
MS ZHANG: Yes.
PN32
THE DEPUTY PRESIDENT: The Occupational Health and Safety Act and so forth. So they're legal contentions but in the document you also set out some factual matters. For example, issues concerning the loss of productivity et cetera.
PN33
MS ZHANG: Sorry, Mr Deputy President, which paragraph are you referring to?
PN34
THE DEPUTY PRESIDENT: Well, for example, paragraph 31. You say, 'During these two hours the tasks I performed' et cetera. So they're assertions of fact.
PN35
MS ZHANG: So are you - I'm a bit confused. Because I obviously, unlike Mr Harrington, a solicitor - - -
PN36
THE DEPUTY PRESIDENT: Well, I understand that.
PN37
MS ZHANG: Yes.
PN38
THE DEPUTY PRESIDENT: I'll try and talk you through it. When I made directions for you to prepare your case the directions required or invited you to file three things. One, an outline of submissions which you have done. Two, a statement of any evidence on which you intend to rely and which you haven't done. And, three, a copy of any documents on which you intend to rely and which you have done.
PN39
Now, the purpose of the statement of evidence is to set out what it is that you are alleging as factual circumstances that I should take into account or find. And it also gives the other side an opportunity to ask you questions about those things. If you don't want to give evidence, that's a matter for you but I am just trying to understand that can I take that the document that you filed as submissions, to the extent that you make allegations about facts. For example, in paragraph 31, that's the statement you want to make?
PN40
MS ZHANG: Yes, that is the statement and with regard in the - - -
PN41
THE DEPUTY PRESIDENT: Sorry and let me finish. And, likewise, to the extent that you respond to factual matters in the CFO statement, that's your response statement. Can I take that?
PN42
MS ZHANG: Correct. And with any supplementary evidence I have the ability to produce at the request any time by Mr Harrington.
PN43
THE DEPUTY PRESIDENT: Well, the time for you to file evidentiary material has passed. So we're now going to deal with the issues on the basis that the material that has been filed and whatever is said orally during the course of this hearing.
PN44
MS ZHANG: Okay.
PN45
THE DEPUTY PRESIDENT: But the reason I am asking this is I just want to understand that you do want to give evidence and that you want to adopt what you say in your written submissions about factual matters. And your response statements in respect of the evidence to be given by the CFO, that will be your evidence?
PN46
MS ZHANG: Correct.
PN47
THE DEPUTY PRESIDENT: Because I am going to then ask. I'll now ask Mr Harrington, are you proposing to cross-examine the witness?
PN48
MR HARRINGTON: Yes, I am. And given her self-represented status and given all the material I have there are fragments of facts - - -
PN49
THE DEPUTY PRESIDENT: Yes.
PN50
MR HARRINGTON: - - -appearing at all of that and so I have just seen it - I see it as a hybrid document.
PN51
THE DEPUTY PRESIDENT: Yes.
PN52
MR HARRINGTON: And I'm not going to take exception to the fact that there is no formal written statement and I am not troubled by the fact that the assertions of fact are contained in what I would call - otherwise call submission documents.
PN53
THE DEPUTY PRESIDENT: Yes. I understand. I appreciate that. And that's the way I intended to proceed. So what I am going to do, Ms Zhang, unless you want to make an opening statement, I'm not going to stop you. But I have read the material. So I don't need for you to make an opening statement. But if you wish I will allow you to.
PN54
Once you have done that I am going to administer - I'll have my Associate administer an affirmation to you and we'll then take your evidence and we'll give Mr Harrington an opportunity to ask you some questions in cross-examination. Do you understand all of that?
PN55
MS ZHANG: Yes. And also I have a question.
PN56
THE DEPUTY PRESIDENT: Yes.
PN57
MS ZHANG: With regards in the opening statement I do have something to say which is outlined under the response to respondent's outline of argument. And on top of that I do have a statement that I would like to say as opening if I may?
PN58
THE DEPUTY PRESIDENT: Yes, of course. Go ahead.
PN59
MS ZHANG: So Victoria is currently have reported alleged health orders in place issued by the Victorian Chief Health Officer acting under the authority of the Minister of Health and Human Services.
PN60
This purported health orders - (a) mandates medical procedures as a term of employment without valid consent as defined by the Australian Immunisation Handbook section 2.1.3, be incapable of being given. (b) Require employers to collect private medical information contrary to the Privacy Act, Commonwealth, 1988 as a condition of employment.
PN61
Many employers including Parks Victoria aren't aware of the risks of coercing people to undergo medical procedures without valid consent. And - - -
PN62
THE DEPUTY PRESIDENT: Ms Zhang, before you go on, just in fairness to you the issue of the operation of the Privacy Act in the context of collection of vaccination information was a matter that was recently dealt with by a Full Bench of this Commission in Construction, Forestry and Mining, Energy Union v Mt Arthur Coal and specifically commencing at paragraph 202. So what I am going to do is I am going to have my Associate send you a copy of that decision because I'm not going to ask you to deal with it now. But at some stage you're going to have to at least consider your submissions in light of what the Full Bench said about the Privacy Act in the context of that dispute.
PN63
So I will say no more about it. But the medium neutral citation for that decision is 2021 FWCFB, 6059. As I said my Associate will send you a copy of it but it's because you make certain contentions about the operation of the Privacy Act in your submissions and the notion of coercion and also you have just made that point now. I thought I'd bring that to your attention. Anyway, continue.
PN64
MS ZHANG: Okay, thank you. The second point I like to make in the opening statement is the section 2.8 - sorry, 2.6 of the Victorian Code of Conduct from Ministers and the Parliamentary Secretaries. And this (indistinct) states - 'The must not encourage or induce other public officials including public servants , bid their decisions, directions or conduct in office to breach the law or to act improperly.'
PN65
So no one is required to disclose their personal medical information to anyone unless they provide consent. And the purported health orders require employers to unlawfully require employees to provide personal medical information as a condition of employment after a contract of employment has been entered into. The purported health orders require employers to coerce employees to submit a medical procedure in the absence of a valid consent. And also CFO incur a statement of witness paragraph 47 has admitted that some employees were coerced into the medical experiment - their own word - so this is to do with the medical experiment mandate.
PN66
And the second part of the statement I'd like to make is regarding the reasonable business ground which I have already made during the first hearing to Mr Deputy President which I will not repeat myself because it is included in the submissions.
PN67
THE DEPUTY PRESIDENT: Yes. And it is included in the submissions. But you should understand nothing that was said in the conciliation conference is relevant for the purposes of my determining this dispute. I'm not taking any of that into account. So if you want to say something about it, you've said it in writing, but this is where it will be decided. The only issue that's relevant in the conciliation conference at the conclusion, was that I amended the application.
PN68
MS ZHANG: Okay. I won't read it out.
PN69
THE DEPUTY PRESIDENT: Well, you don't need to read it out. It's in writing. I have read it. All I am saying is that referring to the conciliation conference is not helpful because I am not going to take any of that into account.
PN70
MS ZHANG: Okay. Understood. Thank you.
PN71
THE DEPUTY PRESIDENT: That's all right. Thank you. All right. Ms Zhang, that concludes your opening remarks?
PN72
MS ZHANG: Yes.
PN73
THE DEPUTY PRESIDENT: Yes. All right. Well, I'll have my Associate administer an affirmation to you now.
PN74
THE ASSOCIATE: Please state your full name and address.
MS ZHANG: Ji Zhang - also called Marina Zhang - (address supplied).
<MARINA ZHANG, AFFIRMED [10.19 AM]
EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT [10.19 AM]
PN76
THE DEPUTY PRESIDENT: Yes. All right. Ms Zhang, let me begin by dealing with what you say in the submissions. You prepared a document which is the first paragraph of which says, 'I hereby make the following submissions', and that document is comprised of 42 paragraphs and then annexed to that document is a document titled, 'Annexure 1 Cheque Payments'. Sorry - 'Appendix 1 Cheque Payments' and 'Appendix 2 Customer Service'. And then there are a list of various emails - 33 emails from April 21 to January 22 which you annexed to that statement. Yes?‑‑‑Yes.
PN77
To that submission. So to the extent that you make assertions of fact in those submissions are the contents of those submissions true and correct?‑‑‑Yes.
PN78
And do you adopt those submissions as your evidence in these proceedings?‑‑‑Yes.
Right. I'll mark those submissions, together with the annexures and the emails attached as a bundle and I will mark those as Exhibit 1.
EXHIBIT #1 SUBMISSIONS TOGETHER WITH ANNEXURES AND ATTACHED EMAILS
PN80
You also prepared a document which is a response to the witness statement of the Chief Financial Officer of Parks Victoria.
PN81
MR HARRINGTON: Deputy President - sorry, what did you mark that exhibit - R1 or A1?
PN82
THE DEPUTY PRESIDENT: No. Exhibit 1.
*** MARINA ZHANG XN THE DEPUTY PRESIDENT
PN83
MR HARRINGTON: Exhibit 1. Sorry.
PN84
THE DEPUTY PRESIDENT: Numeral one - yes, thank you, Mr Harrington. Ms Zhang, the document - responsive document to the CFO statement is dated 15 March and it comprises 32 paragraphs. You prepared that document?‑‑‑Yes.
PN85
And you wish to adopt that as part of your evidence in this proceeding?‑‑‑Yes, please.
PN86
And are the contents of that document true and correct?‑‑‑Yes.
PN87
Yes. All right. Mr Harrington, I'm not coming to you for any objections which - given the applicant is unrepresented. I am assuming we're not going to take technical objections about admissibility and so forth. You can make submissions about weight.
PN88
MR HARRINGTON: Sorry, Deputy President, my approach in unrepresented litigant matters is that and there's a bit of argument and there is objectionable material but - - -
PN89
THE DEPUTY PRESIDENT: I understand.
PN90
MR HARRINGTON: And you'll know where that is.
PN91
THE DEPUTY PRESIDENT: Yes.
PN92
MR HARRINGTON: And I trust in the Commission to deal with that material as it arises but if you want me to go through it I can. But - - -
PN93
THE DEPUTY PRESIDENT: I don't. I just I appreciate the approach. Yes. Thank you.
PN94
MR HARRINGTON: Thanks.
THE DEPUTY PRESIDENT: I'll mark that document as Exhibit 2.
EXHIBIT #2 RESPONSIVE DOCUMENT TO CFO STATEMENT DATED 15/03/2022 COMPRISING 32 PARAGRAPHS
*** MARINA ZHANG XN THE DEPUTY PRESIDENT
PN96
The only other matter, Ms Zhang, is that attached to your initial application for the Commission to deal with a dispute was several documents. They commenced with a working from home document from Parks Victoria and then there was some further emails attached, and also some correspondence dated 14 December 2021. Do you rely on those documents as well for the purposes of your application?‑‑‑Are you talking about the Exhibit 1 or even the - in my submissions?
PN97
No. This is remember when you filed your original application for the Commission to deal with the dispute?‑‑‑Yes. Yes, I have the email - - -
PN98
Okay?‑‑‑ - - -on the - - -
PN99
And attached to that are a number of documents?‑‑‑The first document was the email sent to - email on 16 November 2021. Are you referring to this document?
PN100
Yes, I am referring to that bundle but that's actually not the first document in my bundle. The first document that I have is a document that you signed on the 22 November, 2021, and it's headed 'Work from Home more than two days (40 per cent) request form'.
PN101
MR HARRINGTON: Sorry, Deputy President, to interrupt but that's also at FL6 to the Li statement. So we made an effort to try and put before the Commission, via Ms Li, as many of the relevant documents as we could. But you might want this - - -
PN102
THE DEPUTY PRESIDENT: I have just - yes, I appreciate that. But in any event we'll sit that document to one side given that it's obviously in the respondent's materials but the emails which commence with the 16 November 2021 you want those as part of your evidence, Ms Zhang?‑‑‑16 November?
PN103
Yes, 2021?‑‑‑Yes.
You do? Okay. Well, there's a bundle of emails attached to the application - the first of which is dated 16 November 2021 and the last of which is dated 14 December 2021, together with a letter also dated 14 December 2021 from Ms Zhang to Ms Strobel. I will mark those documents as a bundle and I will mark them as Exhibit 3?‑‑‑Okay.
*** MARINA ZHANG XN THE DEPUTY PRESIDENT
EXHIBIT #3 BUNDLE OF EMAILS DATED 16/11/2021; 14/12/2021 TOGETHER WITH LETTER DATED 14/12/2021 FROM MS ZHANG TO MS STROBEL
PN105
All right. Ms Zhang, so that is your evidence-in-chief. If you want to say anything as part of your evidence which you think needs to be said which may not have been covered in any of these documents you can say so now but otherwise I am going to give Mr Harrington an opportunity to ask you some questions?‑‑‑Thank you. I'd like to make one more document I submitted - the response to respondent's outline of argument on the 15 March that one, two pages that has additional evidence of facts with regarding the finding of - - -
PN106
Let me just find it. Is this a document that is attached to your response to the - - -?‑‑‑To the witness of - the CFO's witness statement.
PN107
Okay. Let me just find it. Did you send it in as part of that?‑‑‑Correct.
PN108
I do not seem to have that in my court book. What is the document?‑‑‑It has the same title C2021/8533 dated 15 March 2022 and the next paragraph, next line says 'Response to respondent's outline of argument'.
PN109
Okay. Well, I have got that document but that's a response - that's a submission in response to submissions made. My practise, generally, isn't to mark submissions. I have got that document. So that's a submission as opposed to evidence. Okay?‑‑‑Okay. Thank you.
PN110
But I have that, yes?‑‑‑So the additional evidence both included, I believe, under Exhibit 2 - the response to CFO witness statement and under this response is the provision of company laptop to myself which I was made to work remotely.
PN111
Yes. All right. Thank you for that?‑‑‑Thank you.
PN112
Mr Harrington? Cross-examination?
MR HARRINGTON: Thank you, Deputy President.
CROSS-EXAMINATION BY MR HARRINGTON [10.29 AM]
*** MARINA ZHANG XXN MR HARRINGTON
PN114
MR HARRINGTON: Now, Ms Zhang, I'm just going to ask you some questions about some of the documents and some of the material. Your screen has frozen, I think, can you hear me?‑‑‑I can hear you.
PN115
Okay. All right. And just, firstly, can I just ascertain? Are you in that room by yourself?‑‑‑Yes.
PN116
There now? Okay?‑‑‑Yes.
PN117
And in terms of the documents in front of you do you have either hard copy or digital copy of the documents the Deputy President has marked? Exhibit 1, Exhibit 2, and Exhibit 3? And do you also have the respondent's material with you in front of you?‑‑‑Correct. I have it in hard copy.
PN118
You've got it all in hard copy. Okay. So if I need to take you to a paragraph or a page you will have it nearby will you?‑‑‑Correct.
PN119
And just because you're giving evidence under affirmation in the Fair Work Commission, you're not permitted to have other documents like notes and things like that in front of you or with you. Can I just find out, also, can you confirm that you don't have other documents in front of you? Like handwritten notes and/or diaries or anything like that? Is that right?‑‑‑No. I just have the documents you just mentioned, in hard copy. And the statement that I have read this morning.
PN120
Okay. That's good, thank you. If you could have to hand - - -?‑‑‑Sorry, Mr Harrington, I do have to let you know that I also have printed out because you mentioned that someone from the Victorian - VMIA is coming - so I do have a printout of their insurance responses to COVID-19 government and agency document one. And also COVID-19 vaccination program issuance frequently asked questions. So there's two additional documents.
PN121
All right. Well, maybe just leave those to one side. I won't be going to those because I understand. Thank you for telling us that you've got those?‑‑‑Okay. And one more thing is I do have my own notes that I have written down to remind myself. Am I able to refer to that notes?
PN122
Not unless the Deputy President permits you to do so. Cross-examination involves testing your memory a little bit about events and unless the Deputy President says I have got this wrong those are the sort of notes that I would prefer you don't use?‑‑‑Okay. All right.
*** MARINA ZHANG XXN MR HARRINGTON
PN123
THE DEPUTY PRESIDENT: So if you want to just put those to one side?‑‑‑Yes. I'll cover it.
PN124
Yes. And if Mr Harrington asks you a question and you don't know or can't remember then that should be your answer, rather than referring to notes. Okay?‑‑‑Okay. Understood. Thanks.
PN125
Thank you. Yes, Mr Harrington?
PN126
MR HARRINGTON: Thank you. Ms Zhang, when you made your opening statement before you made these two statements. You referred to 'alleged health orders in place' and then 'purported health orders in place'. Remember saying that?‑‑‑Correct.
PN127
You come to this Commission to give evidence holding the opinion that in the State of Victoria there are no directions or health orders in place that you are required to respond to. Is that your position?‑‑‑I have two parts to answer your question.
PN128
Sure?‑‑‑The first is health orders by the Chief Victoria Health officer is order only. It's not law. And the second part to my - to your response is correct. I am not part of that order because of my working from home status.
PN129
Okay. There are two time periods that are relevant. There's what's going on right now. I'll leave that to one side. But back in November - sorry, I'll go back further. Back in September and October and November and I am going to ask you questions about that time period. There were things called the Chief Health Officer order - people referred to that as CHO - the CHO directions were in place. Do you remember hearing about CHO directions that were directed to workers?‑‑‑Please clarify which dates? Because they make a number of orders and each order is different from the other.
PN130
You're using the language of 'order'. But what the Chief Health Officer did in the State of Victoria, starting from about late September, through to October/November and into December would make a number of directions under the Public Health and Wellbeing Act 2008. You were aware of that weren't you?‑‑‑I'm aware of the direction, yes.
*** MARINA ZHANG XXN MR HARRINGTON
PN131
And is it your position, also, that those directions are not law and they don't bind your employer or you. Is that your position?‑‑‑I don't know about that. First binding to the employer because I'm not in the position to respond. But I know that that is not binding to me.
PN132
Okay. All right. And just to clarify, why is not binding to you? Why do you say that?‑‑‑Referring to the September and October directions - - -
PN133
Yes?‑‑‑- - -they were referring to - combined with our CEO's communication - those directions are referring to employees' - public health - public employee servants who's working outside of their home, i.e. they have to attend a workplace. At that time I was working from home. Therefore they do not apply it to me.
PN134
Did you understand back then in September and October that one effect of those directions made to bind your employer - Parks Victoria - was that if someone did not produce evidence of his or her vaccination status the person was not permitted to enter upon the workplace? Do you understand that?‑‑‑Yes, Mr Harrington, I understand it. And I also understand that this is not a discussion between an employer and the employee pursuant to Privacy Act, hence I - back in September and October had no obligation to respond to my employer's request. Even though that request is under the direction of the Victorian Health Officer. However, I am outside of that direction.
PN135
All right. Well, I am just trying to make sense of what was going on in September and October from your perspective. And I understand your evidence to be that when your employer directed you to produce evidence of your vaccination status your position, Ms Zhang, is that you were not, at law, required to comply with that direction?‑‑‑Mr Harrington, CEO's communication during that period - September/October clearly clarified that employees working from home are not obliged or not requested to submit such information. That's my first statement. And the second point I like to make is - goes back to the Privacy Act that I overall have no obligation to respond to such requests if it had ever applied to myself because the employer and the employee relationships are outside of a patient's and doctor relationship.
*** MARINA ZHANG XXN MR HARRINGTON
PN136
Well, Ms Zhang, one relevant matter for today and the outcome of today if you don't succeed in this application today, and you are required to attend the workplace - say, for two days a week - because it's possible you can still have a flexible working arrangement that's not five days absent but there is two days. If you do not succeed today and you are required to attend the workplace for, say, the two days per week will you produce to your employer your vaccination status at that point?‑‑‑Mr Harrington, based on your assumption to the outcome of today's hearing, there are - I'd like to point out two points. First, if Mr Deputy President would have to order me to go to work or attend workplace two days - if that's a lawful order issued by Mr Deputy President - then I am obliged to comply. Second to your question whether or not if I am attending the workplace obliged to produce such private medical information my answer to that is 'No.' Unless I am ordered by Mr Deputy President to do so.
PN137
Well, okay, Ms Zhang. I'm not going to debate what the Deputy President may or may not do or his powers to resolve this dispute but I might observe that I don't think anyone is asking him to make an order of that nature. You're asking him to make an order and to resolve this dispute that you be permitted to work flexibly from home five days a week full time. You know that the Parks Victoria has said, 'Well, we don't agree with that.' But Parks Victoria are not asking for any other order. So that's why I was asking you whether you are in a position - if you don't succeed today - to return to the workplace with your vaccination status. Are you in a position to do that?‑‑‑Mr Harrington, like I mentioned just a second ago that my position is dependent on the order - an outcome of today. So like I have answered to you that I am not able to predict what's going to happen. And like you said - I agree - that I am not ordering any way especially for Mr Deputy President to make any order. But I am just responding to you that whatever orders coming out of today is what I am obliged to do.
PN138
Deputy President?
PN139
THE DEPUTY PRESIDENT: Well, perhaps, Ms Zhang the only issue for me to determine is whether the refusal by Parks Victoria to accede to your request that you have admitted to work from home, on effectively, a full-time basis as a flexible working arrangement. Whether that refusal was on reasonable business grounds as set out in the enterprise agreement. Now, either the answer to that question will be 'yes' or 'no'. If the answer to the question is 'yes' that it had reasonable grounds, then the decision that Parks Victoria made on the 7 January this year stands?‑‑‑That's correct.
PN140
What Mr Harrington is asking you is that there are still operative orders in place which limit the capacity of persons who are unvaccinated to attend the workplace and so what I think the substance of his question is whether if I were to find against you, and find that Parks Victoria had reasonable grounds whether you are in a position to return to work on a three-day basis which was the position before the refusal?‑‑‑Thank you Mr - - -
PN141
Given the operative direction. Mr Harrington, I haven't got that wrong have I?
PN142
MR HARRINGTON: No. In my closing submission there are orders that order number five is in place.
*** MARINA ZHANG XXN MR HARRINGTON
PN143
THE DEPUTY PRESIDENT: Yes.
PN144
MR HARRINGTON: Right now. And I can go into that later. But order number five is in place in placing obligations on an employer in the State of Victoria. And this employer, I should say, in relation to Ms Zhang.
PN145
THE DEPUTY PRESIDENT: Yes. So that was his question?‑‑‑So, deputy - thank you both. My response to that question is - yes, if that's the order then - but I wanted to point out the fact that unless the Victoria State Government make it a mandate for employees to go back to the office that regardless their work from home status or not, if that becomes a mandate, then - yes, I guess, that implies to me.
PN146
Well - - -?‑‑‑But at the moment it is not - - -
PN147
- - - I'm sorry - I'm just - let's just cut to the chase. Parks Victoria will not be permitted to allow you to return to work unless you're able to provide evidence that you have received the available vaccines. That's the effect of the current operative order. And so that if I were to decide that it had reasonable grounds to refuse your request that means that three days a week you will be required to attend to work at the workplace. But Parks Victoria will not be permitted to allow you to return unless you can show evidence of your vaccination status.
PN148
And, really, that's the nub of Mr Harrington's question?‑‑‑Thank you. I remember in my memory there was a CEO's email communication sending out to us stating that Parks Victoria will require work from home employees to go back when such mandate is in place by the State Government which means they will not mandate me in this instance to go back to home - I mean to go back to work office even though today's - - -
PN149
I don't actually want to - - -?‑‑‑- - - hearing - - -
PN150
Well, the position as I understand it is that the operative work from home direction as you described it has been a recommendation?‑‑‑Correct.
PN151
That is if you can work from home you can. I think that that - in the last tranche of amendments that recommendation was withdrawn?‑‑‑Correct. The recommendation has been withdrawn but it has not been made as a mandate to go back to work in the office yet.
*** MARINA ZHANG XXN MR HARRINGTON
PN152
In the event that you fail and the Parks Victoria says, 'Well, we are only going to permit you to work from home two days a week, as you have been, previously, before the request. I understand that you were working from home full time pursuant to other circumstances. But that aside - so the only arrangement that it's prepared to agree to is the one that it entered into pursuant to the 40 per cent arrangement and will otherwise require you to attend for work but it won't be in a position to permit you to perform work because of the operative order. That's really - if those circumstances came about will you be in a position to return to work?‑‑‑No, Deputy President. It's a simple no.
PN153
Okay.
PN154
MR HARRINGTON: Ms Zhang, on the basis of that answer 'no', if you could answer this question with a simple 'yes' or 'no'. Have you vaccinated at this time?‑‑‑I'm not able to answer that question because that's my private medical information to you.
PN155
You are frank - no, no, no. Let me clear, Ms Zhang, you are under affirmation - under oath. You're giving evidence in an application that you have made. This is a relevant matter unless the Deputy President tells me I am wrong about that. You have answered a question - it took a long time to get an answer to that question - that no, that you would not be able to return under that bases in the future, depending on how this application resolves. I am going to ask that question again. Are you presently vaccinated against COVID-19?‑‑‑Again, Mr Harrington, I am not obliged to answer that question. I will ask Mr Deputy President to tell me - sorry.
PN156
THE DEPUTY PRESIDENT: It is relevant given the way in which you want to conduct your case. And so you are required to answer the question?‑‑‑In that case I will answer 'no'.
PN157
Thank you.
PN158
MR HARRINGTON: And is it the case that you have no intention of vaccinating in the near future?‑‑‑Correct.
PN159
Can I take you back to when you started? And this is your letter of offer. And so I am going to go to Ms Li's statement because it has a number of documents attached to it. This is FL1 to the Li statement - Ms Li's statement. Do you have that in front of you?‑‑‑Correct. I am trying to find out the correct page.
*** MARINA ZHANG XXN MR HARRINGTON
PN160
Sure.
PN161
THE DEPUTY PRESIDENT: Sorry, Mr Harrington which - which paragraph of the statement?
PN162
MR HARRINGTON: I was going to the FL1. It's an exhibit.
PN163
THE DEPUTY PRESIDENT: I see. Yes, I see. Yes. This is correspondence dated the 23 December 2020?‑‑‑I got it.
PN164
MR HARRINGTON: Yes.
PN165
THE DEPUTY PRESIDENT: That's the - - -
PN166
MR HARRINGTON: I think what we could call, Ms Zhang - a letter of offer. Have you got that in front of you?‑‑‑Yes.
PN167
And you signed that - on page three of that document - you signed it, didn't you?‑‑‑Which paragraph?
PN168
Page three of that document - FL1 - there's a signature which was given on 29 December 2020?‑‑‑Correct.
PN169
That's your signature?‑‑‑Yes.
PN170
And you read this letter of appointment before you signed it?‑‑‑Yes.
PN171
Okay. And it set out your position title as 'Financial Transaction Services Officer', is that right?‑‑‑Yes.
PN172
And it would be a full-time position. Is that right?‑‑‑Correct.
PN173
And the location was at Morwell, wasn't it?‑‑‑Yes.
PN174
And, in fact, the work site location was 65 Church Street, Morwell - the office, is that right?‑‑‑This is not included in the contract if you will see but it is the implied address.
*** MARINA ZHANG XXN MR HARRINGTON
PN175
Well, it may well be the implied address but I am going to ask you when you started work back in January 2021, your first day and the following days did you turn up to an office site?‑‑‑No.
PN176
All right. When did you first attend an office that you worked in under this contract of employment?‑‑‑A few weeks later, if not known.
PN177
A few weeks. And that was at 65 Church Street, Morwell. Is that right?‑‑‑Correct.
PN178
Yes. And is it fair to say that that was your physical place of employment at that time?‑‑‑I believe so.
PN179
Okay. And you - as we have - I put a question to you that you were working full time. So back then, in about February 2021 or thereabouts, did you report to Sheila Wandue as your team leader?‑‑‑Yes.
PN180
Okay, that's W-a-n-d-u-e. That's how you spell her last name, is that right?‑‑‑I remember it. Correct.
PN181
Yes. Okay. And you were one of three financial transaction services officers - FTS officers - was that right?‑‑‑They are the new members. All three of us are new members. Correct. I was one of the three.
PN182
Okay. Was it your recollection that all three of you reported into the team leader, Ms Wandue?‑‑‑Yes.
PN183
Okay. So, effectively, she was your manager. She was your boss. Yes? Is that a fair way of putting it?‑‑‑Correct. She's the team leader.
PN184
And I'm still with the Frances Li statement, that's in front of me here, and I want to take you to paragraph nine of the Li statement. Do you have that in front of you?‑‑‑Correct.
*** MARINA ZHANG XXN MR HARRINGTON
PN185
And Ms Li says, 'Ms Zhang is in the small team responsible for the efficient and effective processing and management of accounts payable and accounts receivable functions.' That's an accurate statement, isn't it?‑‑‑There's some changes in the responsibility with regarding that role that I have not been doing any training or any start point of the accounts receivable. So my main duties, according to my team leader, and accordingly all the way up to the management that I am only responsible in accounts payable just for the moment.
PN186
Okay. And I just want to confirm with you your tasks when you were - when you were working full time. And that is that you were required to process payments to suppliers via EFT or cheque. Is that correct?‑‑‑Correct.
PN187
You were required to update and supply details?‑‑‑This one I had to clarify because anything to do with the supplier details are updated by procurement team. We don't do anything in terms of supplier details in our financial accounting system.
PN188
Okay. Processing prompt payments. That was another duty you performed. Is that right?‑‑‑Correct.
PN189
Well as prompt as possible during COVID-19 Pandemic and lockdown, because that had an affect, didn't it, on how promptly you could process payments?‑‑‑Mr Harrington, I think the prompt payment missed - our CFO is referring to is the prompt payment requires either by cheque or EFT. It's a specific form requested by other organisation or teams. They call it a prompt because that's the form they use.
PN190
Sure. My mistake. Okay. I understand. Reimbursement of petty cash float replenishment. That was another duty you performed. Is that right?‑‑‑Correct. However, there is also a change of direction under the petty cash arrangement or what you call the float replenishment because a lot of - I am not sure if you're aware that given recent update of the accounting or banking system that they are trying to - first of all petty cash is not a major tasks that we perform composing less than, I would say, point five per cent and even that - less than point five per cent of tasks, if you will say, that will be diminished or reduced because they are not efficient anyway.
PN191
You are also required to create and update customer details. Is that correct?‑‑‑The customer details, I believe, referring to accounts receivable and I am dealing with accounts payable. So I have never done that.
PN192
Did you also process invoices in your role?‑‑‑Correct.
*** MARINA ZHANG XXN MR HARRINGTON
PN193
Okay. Now, my instructions from Ms Li - she'll make an amendment to her statement - she says that you weren't required to process credit memo requests. Do you agree with that?‑‑‑Just give me one moment to bring my memory? Yes, credit memo is also relating to accounts receivable.
PN194
Okay. So that's not something you did?‑‑‑No.
PN195
Okay. Thank you. And Ms Li will also change her statement to say that you were not responsible for collecting debts. Is that correct?‑‑‑Correct. That's part of the accounts receivable.
PN196
There was also a duty that you had to provide for financial records for audits and other management matters. Is that right? If demands or requests could be made of you to provide such records by other people?‑‑‑Normally there's such requests straight from the auditors and other management matters are directed to the team leader - Sheila, Ms Wandue. I seldom received any direct or direct request from auditors or management matters.
PN197
Ms Wandue may have and then she would then refer some of those on to you. She would direct you to take care of that?‑‑‑Correct. In that instance I will do that.
PN198
Yes. Can I then take you to another document attached to Ms Li's statement which is FL2 a position description. Do you have that in front of you?‑‑‑I'm trying to find just at the back of the paper. I got it.
PN199
Okay. Good. And do you recall receiving a copy of this position description?‑‑‑Yes.
PN200
And you will see that there's a heading on that first page. Position purpose. And it then goes on to say, 'The primary function of this position is to provide efficient and effective processing and management of accounts payable/receivable functions.' Do you agree that's a fair summary of the purpose of your role Ms Zhang?‑‑‑To reframe your question Mr Harrington it is the primary function of the position of the financial transactional services officer. Given that I am in such role, it does not mean that I am required to perform all the tasks that as the primary function stated in that sentence.
PN201
No. But do you agree that the primary function attaching your position? Primary function of the position is to provide efficient and effective processing and management of accounts payable. Is that a fair, general statement?‑‑‑It is too general. In considering my position at the moment, being the FST officer, this could be a false statement.
*** MARINA ZHANG XXN MR HARRINGTON
PN202
Well, I'm putting to you it's not a false statement. It's a general statement and do you agree with it?‑‑‑Yes, I agree with you. It's a general statement but it's not applicable to me specifically.
PN203
Part of the duties that you did perform, Ms Zhang, was to process payable, receivable transactions and preparing associated reconciliations. Is that right?‑‑‑And can I mention this part is incorrect because from the start of my role that I have been given direction as you would understand that we can only - well, I can only do what direction that I have been given by the financial controller at that time was just before Ms Sheila Wandue joined us because we - I joined just - for maybe around four weeks prior to her. And the direction given to me was to perform accounts payable only. But I don't think I was in the position to order the financial controller to amend the position description as such.
PN204
That's not the question asked. That's not the question I asked. Now you accepted part of your duty was to ensure that work was completed in a timely manner?‑‑‑Correct.
PN205
Okay. And then the work had to be completed in that timely manner in accordance with organisational policies, procedure and guidelines, didn't it?‑‑‑Correct.
PN206
You were required also to contribute towards systems and business improvements. So things could be done better. It was hoped that you could contribute to that. Is that right?‑‑‑Yes.
PN207
And you were also required to comply with any duties assigned to you by your team leader? Yes?‑‑‑As to the best effort that I could do.
PN208
Sure. Page two of this document, 'Key accountabilities' and under the heading in that box or diagram on the page says, 'Accountability transactional services'. It says that you're required to raise invoices, credit notes, collect debt and process supplier's invoices with accuracy and on a timely basis.' Now, you said you didn't do receivable - accounts receivable. Is that right?‑‑‑Correct.
PN209
But you did - have I got this right? You would have raised invoices and credit notes?‑‑‑No, that's a part of accounts receivable.
PN210
Okay. So all of that first line, you say, is accounts receivable, is it?‑‑‑Only the process supplier's invoices is accounts payable. That's my job.
*** MARINA ZHANG XXN MR HARRINGTON
PN211
All right. So that part of that transactional service is what you're required to do?‑‑‑Yes.
PN212
Okay. And now if you look down the page there you will see the reconciled supplier's invoices. That was to statements and debtors report and bank cheques. Is that right? Is that a part of what you did?‑‑‑This is a mix of accounts payable and accounts receivable and that there is also a redistribution of statements. So reconcile supplier was this - this is my role - and that's it.
PN213
Okay. Then it says, 'Perform accounts receivable'. We know about that. Payable - in process and procedures to ensure ARAP subsidiary ledger reconciles to the general ledger and rollover for the month. Now which part of that were you required to do?‑‑‑I believe this is referring to the month and the process.
PN214
Yes?‑‑‑Subsidiary ledger reconciliation is mainly a financial accountant's role. But in my position I produce reports from the financial system, Oracle, that we use to submit to her. And she is called Lena and she is the financial accountant located in Melbourne CBD.
PN215
That reference to ARAP. What does that stand for? Is that accounts receivable? Accounts payable, isn't it?‑‑‑Correct.
PN216
Okay. It then says, 'Provide financial transactional services to the Team Leader Financial Transactional Services as required.' That's a fair summary. It's general but that's a fair summary, isn't it?‑‑‑Correct.
PN217
Okay. You were reporting management the next line there it says, 'Assist in the month-end closing process preparation of age, debt of report, and reconciliation of ledgers. Do you agree with that?‑‑‑That's - yes - part of month-end process. As part of what Accounts Payable can do, but a lot of the major - like I mentioned the major task accounts payable that I perform is the January reports and they submit to the financial accountant to action the reconciliation.
PN218
Yes. You see now the stakeholder management it says, 'Develop and maintain excellent working relationships with external internal suppliers, excellent communication with customer service skills.' Do you see all that?‑‑‑Correct.
*** MARINA ZHANG XXN MR HARRINGTON
PN219
And do you accept that one way to have excellent communication and customer services skills is to have direct contact with customers when you need to?‑‑‑Correct. And in terms of direct contact it's a little bit limited in terms of Morwell, like you mentioned with 65 Church Street, Morwell, that it's not an office that's opened to the public.
PN220
Sure. Because we're in this part of the document, perhaps I'll take you to FL3, which is the Chief Executive Officer update and this is 29 October 2021. Do you see that?‑‑‑Chief Executive Officer.
PN221
Update. It's an FL3. It's a document attached to Ms Li's statement?‑‑‑Oh, yes.
PN222
Do you recall back then in October you were working outside of the office. You were not working in the office at that time but do you recall getting these Chief Executive Officer updates via the email?‑‑‑Yes. Yes.
PN223
And did you routinely read them?‑‑‑Yes.
PN224
And there was references - for example, this first one at FL3 and this is 21 October of the second paragraph, it speaks of the 80 per cent double dose vaccination target, et cetera. Or you read that at the time, didn't you?‑‑‑Correct.
PN225
And then can I take you to the next one? It's still part of FL3. For November 2021 it says second paragraph, 'Currently under Phase C of Victoria's road map.'?‑‑‑Yes.
PN226
The directions are 'work from home if you can but you can go to work, if fully vaccinated.' And then during this phase, 'Masks will continue to be required in the office.' Did you see that? You read that at the time, didn't you?‑‑‑Are you talking about the letter on the 4 November 2021?
PN227
I am. Yes. I was quoting from that?‑‑‑This one I don't recall. I may just glossing through. I may recall that I have read in detail because - but as you can see this email was not too far away from the last email issued on the 29 November, basically talking about the same thing, and that we were really busy in terms of processing supplier invoices. So I may have skipped through. But I have definitely by the 29 October.
PN228
But you knew in November 2021, Ms Zhang that if you were required for any reason to go to the workplace you were required to be fully vaccinated. You knew that, didn't you?‑‑‑I know that later on - yes, I may not directly from this email communication - but I may have heard from other sources.
*** MARINA ZHANG XXN MR HARRINGTON
PN229
Okay. Did you also know that if you had to go into the workplace in November, 'Masks will continue to be required in the office.'?‑‑‑I'm not so sure about the masks. Sorry about that.
PN230
Do you have an opposition to wearing a mask, Ms Zhang?‑‑‑I don't know why you ask me these questions to put in a fair way because I wasn't - I don't relate to the masks information.
PN231
I'm just asking the question again, Ms Zhang. Do you have an opposition to wearing masks?‑‑‑You mean I have an opposition for me to wear a mask? Or other people to wear a mask?
PN232
Well, for you. No, for you. Just asking about you at this point?‑‑‑Correct. Yes.
PN233
You do have an opposition?‑‑‑to put in a fair way that I don't have an opposition for myself but I do have opposition for masks to be worn on children.
PN234
Okay. So you would say you could wear a mask but your opposition is in relation to children?‑‑‑Correct.
PN235
Okay. On that question you disclosed in your application a flexible working back on 22 November, 2021, and this is document FL6, an email 22 November 2021. 'Hi Sheila'. It's an email that you sent?‑‑‑Let me find it. I got the document.
PN236
Anyway, and I want to take you to the actual formal application work from home more than two days (40 per cent request form). Do you see that?‑‑‑I've got that.
PN237
Yes. And then there's a narrative on the page two and three. If you can turn over the page?‑‑‑Yes.
PN238
And those are your words? You've typed them up? Is that right?‑‑‑Correct.
PN239
Okay. And you say, 'I confirm that from 11 January 2011 I will be completing my first 12-month continuous employment as a full-time employee at Parks Vic. I am making this request to help me to look after my three-year old and eight-year old daughters.' Do you see that?‑‑‑Correct.
PN240
So back then on 22 November 2021, you had then two daughters aged three and eight, is that correct?‑‑‑Let me confirm the dates because my daughters have birthday in October. So let me confirm the dates.
*** MARINA ZHANG XXN MR HARRINGTON
PN241
I really wanted to get to this. Do you still have two daughters and are they three and eight years of age right now? Or are they older?‑‑‑Yes. Yes. Yes.
PN242
Okay. So they're three and eight now. Does that mean one of them is pre-school and one of them is at school?‑‑‑Three year old is three year old Kinder. Eight year old is not currently at school per se because we have to do home school.
PN243
Why do you have to do home school?‑‑‑Can I refer you to a document that I have submitted? I think it's declared as Exhibit 1.
PN244
Okay. Yes. Well, could you just - - -?‑‑‑Sorry. This is not a statement.
PN245
No, no. But I am just saying if you could answer the question? I asked you the question. Why are you required to do home school as you put it?‑‑‑All right. I'll read out my response to you.
PN246
No, no. I don't want you to do that, Ms Zhang. I just want you to answer the question. This is what happens with this questioning. If I want you to go to a document I'll definitely ask you to go to a document but I want you to tell me?‑‑‑So I just want to clarify my understanding that at this current procedure that only you, Mr Harrington, can refer to a document? But me, myself can only - - -
PN247
THE DEPUTY PRESIDENT: Ms Zhang? Mr Harrington has asked you a question which you are either in a position to answer or you're not and it was in response to you saying that you had to home school your eight-year old daughter. And he's asking you why do you have to. So you can explain that can't you?‑‑‑I was trying to refer to the notes that I have which is on the - - -
PN248
But surely you know that, don't you? Without referring to your notes? Do you know that?‑‑‑Yes. I just don't know the exact detail because it's quite medical term. So the reason why we have to - or I have to home school my eight year old daughter and also my three year old daughter. Both of my daughters is because the masks - will potentially cause severe damage in children's breathing.
PN249
Sorry. Can we just go back a bit? There is no mandate for three year olds to wear masks. So we're talking about your eight-year old daughter and the school mandates that children in grade three and above wear masks?‑‑‑Correct. That mandate has been - it existed for a long time. Yes.
*** MARINA ZHANG XXN MR HARRINGTON
PN250
Yes. All right. So - - -?‑‑‑I was just trying to refer to which date it came out but according to my memory that's - - -
PN251
It's not in dispute that as things presently stand or at least from the beginning of this year. And I think some parts to the end of last year children who are in grade three and above in primary school are required to wear masks. That direction doesn't apply to secondary school students?‑‑‑No.
PN252
Only primary - - -?‑‑‑But at that moment - November - my daughter was in the end of the year two, which means - - -
PN253
Yes?‑‑‑- - - coming to this New Year she will be in Year 3.
PN254
I understand that. And so last year there was no mandate which required your daughter to wear a mask. But from this year because she's in Grade 3 she's required to wear a mask indoors at school?‑‑‑Correct. And also that mandate existed last year for Year 3 - for three year old children.
PN255
I understand. I understand but your daughter wasn't affected by it last year?‑‑‑No. Not last year. No.
PN256
No. So, the question that Mr Harrington asked you was, 'Why is it that you say you had to?'?‑‑‑The whole school started this year.
PN257
Yes?‑‑‑This is the timeline. So I had to apply to the Department of Education to submit the form and get the form to be approved for the home school to go ahead. I cannot just do the home school without the proper paperwork.
PN258
Yes. I think Mr Harrington's question focuses on your contention that you had to. That it was, in effect, mandatory. Am I getting it wrong, Mr Harrington? Is that the - - -
PN259
MR HARRINGTON: No. I wanted the witness to explain why she believed - - -
PN260
THE DEPUTY PRESIDENT: Yes.
PN261
MR HARRINGTON: - - -she had to - - -
PN262
THE DEPUTY PRESIDENT: Yes.
*** MARINA ZHANG XXN MR HARRINGTON
PN263
MR HARRINGTON: - - - home school. Whether it be last year or whether it be now why do you believe you had to, Ms Zhang?‑‑‑Because of the mask - effect of mask does not really prevent such disease like COVID. But in the same time - long-time wearing a mask on children will potentially affect their brain development and cause severe brain damage. Therefore, as a mother, in my position with the knowledge of mask how a mask will do on children will not permit such a thing to happen on my children. So I have to withdraw her from school which means I have to home school her.
PN264
And you are home schooling your daughter and have been home schooling since late January this year. Have I got that right?‑‑‑Correct.
PN265
Okay. And that is a home schooling job that you have to during so-called school hours more or less you have to attend to her schooling needs as she's doing her subjects and undertaking her studies. Is that right?‑‑‑Given the home school it is as flexible as how parents would design the curriculum. So in terms of during school hours I have a job share - I mean home school share with my husband. And I do take all my responsibility when he had to leave for whatever the reason. Therefore, during the school hour I do have to attend physically to guard and to do whatever is necessary while working for Parks Victoria.
PN266
Does your husband have a full-time job?‑‑‑No.
PN267
How often is he absent from the house between Monday and Friday?‑‑‑I don't have that particular record but there are - - -
PN268
Is it a few hours each day? Does his work require him to be absent a few hours each day, during the day or does he only go out to work at night?‑‑‑There are happen at the times. So I haven't really put down a frequency or any such pattern. But if you require me to I can - I can put down some notes and something to you.
PN269
No. I just want to - well, what does he do? What is he employed to do? Your husband?‑‑‑My husband is self-employed and he have to do his own business.
PN270
And what business is that?‑‑‑He's teaching Mandarin and also selling products online.
PN271
When he teaches Mandarin does he leave the house to do that?‑‑‑Sometimes have to.
*** MARINA ZHANG XXN MR HARRINGTON
PN272
And is that often during the day? Monday to Friday?‑‑‑Correct.
PN273
Now, you gave some evidence before that your personal view is that wearing of the masks has the potential to cause severe damage. And you said brain damage. Is that right?‑‑‑Correct.
PN274
And what medical data or evidence have you based that opinion upon?‑‑‑Is called comments from neurosurgeon Dr Avery Jackson. I have the specific link for you to refer to in one of the submissions.
PN275
Yes, that's right. And that's at paragraph 31 of Exhibit 2. Your report to the CFO witness statement. There's a footnote five. Doctor Avery Jackson, who is an American, who says he's a neurosurgeon - perhaps neurologist. And late last night I looked at that link and that's a link to a Pentecostal Church, known as the Lord of Hosts Church?‑‑‑Correct. It's quite a long link and - - -
PN276
Two hours?‑‑‑- - -I think the second half of the service he has made that statement. This is the latest statement that I can find.
PN277
Yes. Sorry, Ms Zhang he presented to - after there was singing and speaking in tongues in the Pentecostal service he then was invited to speak to the chapel and I think there may have been a hundred people in the chapel?‑‑‑Correct.
PN278
He expressed views about - or various things that weren't strictly medical views I don't think, from my observation but - - -?‑‑‑No. He's a doctor practising for so many years. His field would be the medical field.
PN279
So you watched a presentation by Dr Avery Jackson at the Lord of Hosts Pentecostal Church in Omaha, Nebraska on 27 February 2022 and you then adopted the opinion that masks could cause severe brain damage?‑‑‑Two things. I didn't watch that service. I simply just listened. And secondly that service is recorded March - or February - late February 2022, because that's the latest evidence that I can find to show you to present. But during that statement he also mentioned that eight months ago he has made such statement about masks. And that's where I first heard it. But I wasn't able to go back to that source because I wouldn't be able to find where I heard from him but I can find it.
*** MARINA ZHANG XXN MR HARRINGTON
PN280
He also expressed opinions or views that were deeply sceptical about the world-wide Pandemic COVID-19, didn't he?‑‑‑I'm not able to comment on that, Mr Harrington, because first of all it's not a sceptical. He's a well-trained doctor, has more knowledge than myself and also he's speaking on behalf of the Lord of Hosts Church which is a pastor and the pastors that I honour, therefore I do not agree what you mentioned about sceptical. But I do know that what he said would be for the benefit of the congregation, including online forms.
PN281
Sorry. And are you a member of that congregation? Is that what you're saying?‑‑‑I'm not a member but I do follow what they say.
PN282
Yes. Okay. So, although Dr Avery Jackson said something that you agree with on 27 February 2022 you had this opinion about potential brain damage - your children's potential brain damage from wearing masks back in November 2021, did you?‑‑‑Correct.
PN283
Okay. Back in November 2021 where did you adopt that opinion from or how did you reach that conclusion back then?‑‑‑Because I heard Dr Avery Jackson and also his colleague Dr Peter McCullough - both American frontline doctors - they have statements and appearances and on different outlines and platforms. I heard their speech in one of the outlines and platforms. Therefore, I know that this caught my attention to what potential damage can do - masks on the children - hence I got this knowledge. Deep down in my heart - many, many months ago - but I actioned in November 2021.
PN284
Did you seek any expert medical advice or opinion from within Australian on this question in relation to your own children?‑‑‑Mr Harrington, I don't need to. The reason being this Pandemic or COVID they call is global. What American children get is what Australian children get.
PN285
You're not answering my question, Ms Zhang. I am asking you, did you seek out and obtain any medical expert opinion locally within Australia in relation to this question about brain damage caused by masks for children?‑‑‑I think your question is a little bit restricted. How could Australia act the law in this Pandemic with all the medical experts - - -
PN286
I'm not interest in that, Ms Zhang. I'm interested in you answering my question. I'm asking about what you did and whether you did something? Did you locally go out and obtain or seek to obtain expert medical opinion from an Australian doctor - medical expert - about the effects of masks on children and potential brain damage? Did you? Yes or no?‑‑‑No.
PN287
No. So you've got no medical opinion from Australia to support you, do you?‑‑‑I guess you can say so. But it's my belief and it's my responsibility to teach and also to look after my children. Those doctors - they are not responsible in looking after my own children.
*** MARINA ZHANG XXN MR HARRINGTON
PN288
The records in the workplace demonstrate that you did attend and work in the office during January and September 2021. Do you accept that?‑‑‑Correct.
PN289
And in fact, and you don't have to agree with this, but the building access records suggest that you were there 85 working days or 85 times in that month period you attended. Does that sound right? Because think of it on a month by month basis 10 working days, on average, each month you would have attended the office, physically, to do your work. Does that sound about right to you?‑‑‑Ten working days each month from Jan' to September - 10 working days each month - about - I think I would agree because they have the digital record. Just some times when I go to attend office I forgot my key. I just left it. It's not happening every time. It just - maybe a few times. So I think that they're - - -
PN290
I just ask you if that sounded reasonable if you put it like that?‑‑‑Yes. Yes.
PN291
Yes. So if one assumes you might work 20 to 22 working days per month on average and the average for you was that 10 of those days you were travelling into physically working in the workplace? And in fact you were issued with a worker's permit, do you remember that? A permit to come to work? This was on 6 September 2021?‑‑‑That permit didn't really come into fruition.
PN292
I know that because of what happened in Victoria. But you were issued with one weren't you?‑‑‑Yes.
PN293
Mm-hm?‑‑‑I think it was not one - two.
PN294
Okay?‑‑‑Because during - just before the end of financial year I was issued with a permit to go into do the financial end of year transactions because back then everything was paper based. Unlike now everything is online based.
PN295
Well, you say 'everything is online based'. That's not entirely correct, Ms Zhang, is it?‑‑‑Oh, yes - correct. I beg your pardon. Everything I do now is online based now.
PN296
Everything - - - ?‑‑‑Everything I did then was paper based.
PN297
Sorry. Everything that you are doing working from home five days presently is online based. But not everything in the FTS team is digital or - - -?‑‑‑I agree with what you say.
*** MARINA ZHANG XXN MR HARRINGTON
PN298
Okay. Thank you. Now, as you just said in the end of the financial year 2021, there was a large volume of work to be done by your team and you attended the office - the end of year accounts function, didn't you?‑‑‑To be precise - correct, because back then in terms of accounts payable which is relating to what I have to do, according to the duties and descriptions, that's paper based. Everything has to be printed out. Therefore there's a lot more work involved.
PN299
Okay. Do you accept there are hands-on jobs that are part of your role that you cannot do at home presently - do you accept that proposition?‑‑‑It is not the complete proposition, Mr Harrington, because for example I know where you are taking to is the cheque printing. Obviously - - -
PN300
No. I just want you to try and honestly answer my question. Okay? Because I am going to ask you more questions but it's a very general question. Do you accept there are parts of your contracted role - the job that you must do in accordance with your position description, that you simply can't do working from home on a full-time basis? Do you accept that proposition?‑‑‑No.
PN301
You know, no matter how many minutes or hours that it takes a month, you know that some suppliers have to be paid by cheque, don't you?‑‑‑Correct.
PN302
And, in fact, you've considered that up to two hours per month - that's just your assessment - there is a job required to be done in the office of sending cheques out to certain suppliers. Do you agree with that?‑‑‑Correct.
PN303
Okay. And, historically, that was a duty or task that you would perform, wasn't it?‑‑‑Correct.
PN304
So do you agree with me that that's an example of one - what I will call - hands-on job that you simply can't do working from home full time?‑‑‑No. If you would allow me to explain I will tell you the reason.
PN305
Well, I wouldn't normally, but perhaps it's a fair thing to do Deputy President, to allow the witness to.
PN306
THE DEPUTY PRESIDENT: Yes. All right?‑‑‑Thank you. Mr Harrington, when you say in terms of the tasks that I have to do it's all done not by one procedure but every tasks, reasonably to say that involves a number of steps. Correct?
*** MARINA ZHANG XXN MR HARRINGTON
PN307
MR HARRINGTON: Well, I'm not here to answer your questions so you just give your answer please?‑‑‑Okay. So during the tasks performance because it involves a number of tasks that I was able to perform even with hands-on tasks or responsibilities that I have to do, I was able to do remotely.
PN308
Ms Zhang, you cannot physically fill out cheques that are located in the office in Church Street, Morwell, and have them sent out, facilitate them being sent out when you are working at a remote location, can you?‑‑‑I could Mr Harrington. That's exactly what I mentioned. In terms of cheque printing, first of all, that invoice has to be entered on Oracle. That's what I can do. Secondly, once it has been entered a payment round cheque, payment round has to be performed on Oracle. That's what I can do. Secondly, once the printing has been printed out presumably it will be printed out in the office environment, that's what I can also do. The only thing I was not able to do is collecting those mails, put into the letter and the log and walk downstairs. However - - -
PN309
And you want - - -?‑‑‑- - - during that process what I can do is confirm the correct postal address to my team. Therefore, we don't make mistakes in terms of the postal address and - - -
PN310
Ms Zhang, that's the point - - -?‑‑‑- - - let me finish, Mr Harrington.
PN311
No. Ms Zhang, you've had a go. That's the point. You rely upon other people in the office to pick up the slack, to pick up certain tasks to help you work differently and work from home. Because there are elements of that task that you cannot do when you're working from home. Isn't that right?‑‑‑Harrington - sorry, Mr Harrington - I think to put it fairly these tasks is mean to be worked or performed in the team environment. When you say that I cannot do - that proposition I am not able to accept - because I can help in a team environment to make sure this whole task to become completed. But in terms of something that I have to rely on other people to do from your proposition seems that other people are not responsible to perform the tasks. We all perform the same task within the environment.
PN312
And you want this Commission - you want this Commission to give you a license to be at home full time such that other people have to perform tasks that you simply can't perform because you're at home. That's right, isn't it?‑‑‑Mr Harrington, what you are saying you have neglected the team effect. If you put down the team effect - - -
*** MARINA ZHANG XXN MR HARRINGTON
PN313
This is about the team. There's no I in team as I recall it, Ms Zhang. This is about the team and you want, by obtaining this - an order from the Commission to reshape what all the other members of the team must do to facilitate you working from home on a full-time basis, that's what you're asking the Commission to do, aren't you?‑‑‑Mr Harrington, as you have pointed out with the position description that is not only for me. It is for every member of the financial transactional services team. Everyone has the same copy. If you say that I rely on other people to do - may as well put in that Parks Victoria are relying on the team to perform the task.
PN314
Now, Ms Zhang, there's one part of your duties involves participating in what I'll call the Australia Post roster where you have to physically collect mail items, correspondence and the like and distribute it, that's right, isn't it?‑‑‑Mr Harrington, that is not my duty.
PN315
So you're denying that you're part of a roster involving Australia Post and mail?‑‑‑Correct, because that's part of the duty that our team leader has put her hands up and I have explained in one of my submissions that such request meeting was organised in May or June 2021 that allow the same floor of Parks Victoria occupying the Government have at 65 Church Street, Morwell. There are payroll, customer service, IT and also environmental science, each one of them collecting - or may not be evenly distributed roles in terms of helping to make sure the office building - the entire building or at least the entire floor is functioning so someone picked up the milk supply, someone picked up with the post office letters because customer service team and other teams would have to post letters out corresponding to ‑ ‑ ‑
PN316
Ms Zhang, Ms Li will give evidence that the FTS Officers, and you're one of three of those, work on a rotating basis to cover mailroom services such as DX and Australia Post mail. You agree with that, don't you, she's telling the truth about that, isn't she?‑‑‑I'm afraid I cannot agree on that because I have no evidence in my email or in my directions to do some of these ‑ ‑ ‑
PN317
Can I ask you, Ms Zhang, to please tell the truth about this, did you ever engage in a mail room service such that you were collecting DX and Australia Post mail and the like, did you personally ever do that?‑‑‑Yes, Mr Harrington, I have done that myself when I was there.
PN318
That's - you - if your team leader issued a direction to you and to your other members of your team that you had to undertake that task, that's right isn't it?‑‑‑I don't have to, Mr Harrington. There's no - how to say (indistinct) between me and other team members who's doing what. I was just there because I was helping to move the furniture. You wouldn't say that now because I'm working from home I wouldn't be able to help my manager or other team members to move furniture's. That's not my role.
*** MARINA ZHANG XXN MR HARRINGTON
PN319
Well, your role is to comply with any reasonable direction issued to you by your team leader, that's right, isn't it, that's part of your duty, yes and as you've just said, there were occasions on which as an officer, an FTS Officer, you were engaged in mail sorting duties, weren't you?‑‑‑I have been engaged in.
PN320
Yes. And if you work from home you can't engage in those mail sorting duties, can you?‑‑‑I'm not saying that I'm not working full-time, I have been utilising my time to do the sufficient and efficient jobs.
PN321
I don't (indistinct) Ms Zhang, I'd like you to answer my question. When you're working from home full-time, five days a week, you can't engage in any mail sorting duties, can you?‑‑‑No. Mail sorting duties, moving furnitures, collecting garbages, I'm not able to be physically present.
PN322
No one's ever directed you to collect garbage, have they, Ms Zhang?‑‑‑There is rubbish bins that ‑ ‑ ‑
PN323
Listen to my question. Listen to my question. No one's ever directed you to collect garbage, have they, Ms Zhang?‑‑‑How - depends on how do you define collecting. I have done that job.
PN324
THE DEPUTY PRESIDENT: Well, the question wasn't whether you've collected garbage, the question was whether you were directed by anybody to collect garbage. Can I suggest to you, Ms Zhang?‑‑‑(Indistinct) the garbages can be on the desk of the ‑ ‑ ‑
PN325
Can I suggest to you, Ms Zhang, that you listen to the questions that are asked and try and answer the questions. One of the things that I need to do in fairness to you is to make an assessment about the credibility of (indistinct) ?‑‑‑Sorry, you are mute.
PN326
MR HARRINGTON: Sorry, Deputy President, you're (indistinct) ‑ ‑ ‑
*** MARINA ZHANG XXN MR HARRINGTON
PN327
THE DEPUTY PRESIDENT: Sorry about that. My microphone just disconnected for a moment. One of the - in fairness to you, one of the matters that - or I need to make assessments about are the nature of the evidence that a person gives and whether or not I think the witness giving the evidence is credible. A factor that is relevant in that assessment is how witnesses answer questions, whether they're direct or evasive, whether they adopt a politician's view as to answering questions, that is, they don't answer the question at all but answer some other question that was not asked. So can I suggest to you strongly listen to the question that Mr Harrington is asking you and answer the question. Don't answer a different question.
PN328
Mr Harrington?
PN329
MR HARRINGTON: Thank you.
PN330
When you have been working at home full-time since about September last year, Ms Zhang, on occasion have you requested that physical hard copy documents be delivered to you to assess?‑‑‑I'm a bit confused. What physical document hard copies are you referring to?
PN331
Well, I'm just asking you at any time have you said to the office - to people in the office, 'Can you actually send physically me some of those documents or can you get for me documents', have you done that?‑‑‑Let me recall because I seldom do that. I have all the paperwork accessible in soft copy so I have to really drag my memory into it, so could you give me five seconds, let me think about it. Yes, Mr Harrington, there was once instance.
PN332
All right. Do you also recall the circumstances where you were looking at a claim or invoice details in relation to the cancellation of two cheques and you had to ultimately substantiate through the financial records whether the cheques should be issued or not but the paper records were actually located in the Morwell office, do you recall that occasion, and you had to ask another team member to do the substantial task?‑‑‑Mr Harrington, I don't recall such instance.
PN333
All right. Have you attended any office based events that involved planning, group - the group actually getting together, the financial team FTS team getting together, can you recall being all in one place at the one time and having a group event?‑‑‑Correct.
PN334
All right. Was it your experience of those group events that that was a positive experience for the team working together that everybody was in the one place discussing planning issues, strategic issues and the like. Did you recall saying, 'Well, this is a' - thinking to yourself, 'Well, this is a positive thing that we're all together at the one time'?‑‑‑I guess we were comparing to something with positive that I would think that is a pretty good thing to do.
*** MARINA ZHANG XXN MR HARRINGTON
PN335
All right. If you're not vaccinated and you're not permitted to attend the workplace, you can't attend a team event like that, can you, in a physical sense, physically attending a team event, is that right? Is that your understanding?‑‑‑Yes. Just let me to - if I may add in some sentence according to Mr Deputy President.
PN336
THE DEPUTY PRESIDENT: Yes, go on?‑‑‑During - thank you. During the team meetings we had it's often remote in nature. The reason being because we have four team members under the team conduct, we often had to remotely connect to some other people online and that's what we have been doing within our FTS team in Morwell and also the whole financial team throughout the CBD and Morwell. So in my experience, majority of our team meetings are conducted with mixed method, if it's not all online, hence therefore my response to your question whether it's a positive thing for me to think about if everybody's all together, I believe it's definitely a good thing to do with physical interaction but it's not the majority experiences that I have had experience in the past for the one year work experience with Parks Victoria.
PN337
MR HARRINGTON: Ms Li will give evidence from her statement, and you have this, and I just want to read from paragraph 37, okay, I'll just quote it to you:
PN338
Connections through face‑to‑face interactions either formally, e.g. international food day lunch, of informally, e.g. lunch room discussions are encouraged and in my opinion, to each team member and the broader team itself.
PN339
Do you agree with that proposition, Ms Zhang?‑‑‑Yes.
PN340
That's under the heading, 'Workplace culture, the idea of fostering workplace culture.' Do you agree that it's a important to foster workplace culture in the part of Parks Victoria that you work in?‑‑‑Correct.
PN341
Now, I just want to take you back to - it's a bit of a timeline that I want to take you through just to check that I understand what's gone on, was it about 23 September 2021 that you commenced to work from home five days a week from that point?‑‑‑Roughly, correct.
PN342
All right. Because that's what we call here in Victoria, that's a lockdown - a Victorian Government lockdown pretty much commenced on that date if I remember correctly, was that the reason that you were working five days from home?‑‑‑Correct. And also there were snap lockdowns in Latrobe Valley where Morwell is located, somewhere along that line.
*** MARINA ZHANG XXN MR HARRINGTON
PN343
Yes, sure. And it was on 1 October 2021 that the CEO of Parks Victoria announced a vaccination mandate for all workers, do you recall that?‑‑‑Are you referring to which email? It's attached.
PN344
Well, in your submissions you say this, all right, this is exhibit 1, you say that:
PN345
Up until 20 September '21, so your CEO communications say vaccination is voluntary -
PN346
- this is your submission, on 1 October '21 CEO communications says:
PN347
Victorian Government announced vaccination mandate for all authorised workers -
PN348
- do you see that?‑‑‑Yes.
PN349
All right. And back on 15 October 2021, do you recall receiving a draft vaccination protocol that was sent to all staff?‑‑‑Correct.
PN350
All right. And that's at FL4, attached to Ms Li's statement, I just want you to check that we're all agreeing on the same documents. This is the COVID‑19 vaccination procedure, PRO-239, it's at FL4 and you received a copy of that, didn't you?‑‑‑Just to clarify, Mr Harrington, I do not see any difference between FL4 and FL5, they to me, seem to be identical.
PN351
Sure. That might be the case, I'll check that.
PN352
THE DEPUTY PRESIDENT: Well, they're not because they're differently dated for a start.
PN353
MR HARRINGTON: There was - I referred to this one, FL4, as a draft, you might be referring to the fact that FL5 is in fact the final version. Let me just check that for you. It's the - FL5 is a copy of the current - updated and current approved version so that's the difference all right? All right?‑‑‑All right.
*** MARINA ZHANG XXN MR HARRINGTON
PN354
Now, it was on 29 October 2021 that your CEO explained to you that there would be a hybrid work model, do you recall that?‑‑‑Mr Harrington, the hybrid working model has been discussed throughout the entire - my employment of Parks Victoria because that's what we have seen commencing today and later on they define it as a hybrid so my knowledge of hybrid came much earlier, I believe.
PN355
All right. Well, there were some emails from Matthew Jackson, the CEO explaining with some particularity, a move to a hybrid working model with 60 per cent of working hours to be worked from home if possible. Do you recall that?‑‑‑Yes. If I may also add I remember when I had this hybrid knowledge came from was - I remember I had a discussion with my team leader and also a financial controller from the very early of my employment, around March, or if not February, just after our team leader Sheila Wandue came to lead our team, back - much earlier back then that I had this discussion about working - flexible working arrangements and that's when - the first time I heard that it will be potentially three days in the office and two days' work from home.
PN356
That's right. And can I take you to an email of 19 November 2021 from the CEO, this is the chief executive officer update and that email, it speaks of this hybrid model 60 per cent working from the office based on government advice, do you remember that? Do you remember reading that at the time?‑‑‑Because you are referring to the 19th - are you referring to 19 November email?
PN357
I am, yes?‑‑‑This is the - like I mentioned just earlier of our conversation because this is very close to the previous email so I may just (indistinct) really go into the details.
PN358
I'm not asking you to sort of sit back and say, 'No, I remember very specifically on a particular time, on a particular date sitting at the kitchen table and reading that', I don't ask you that. I'm just saying is it likely that you received it and read it at about that time?‑‑‑I definitely have received it, I made - you know even opened the email because (indistinct).
PN359
Sure. That was 19 November and I've already taken you to FL6 which is the 22 November request made by you, 'Work from home more than two days 40 per cent request form', all right, so three days after that email was when you filled out a request form, is that right?‑‑‑It is correct and also like I mentioned earlier on, I have been endeavouring to communicate with financial controller and my team leader Sheila Wandue back in March or February, I may be able to get the evidence for you from my history that I have been endeavouring to communicating with my company in that sense about flexible working arrangements. So the actual form that the - I submitted was 27 November if I'm correct but the conversation has started much earlier.
PN360
Sure. And what you say in your form and we've gone to this already is that:
*** MARINA ZHANG XXN MR HARRINGTON
PN361
I'm making this request to help me to look after my three‑year‑old and eight‑year‑old daughters.
PN362
?‑‑‑Correct, yes.
PN363
All right. Now, the request, Ms Zhang, was not made entirely because you wanted to look after your three‑year‑old and eight‑year‑old daughters, was it?‑‑‑It is entirely to look after my three and eight‑year‑old daughters.
PN364
No, no. You're not telling the truth about that, Ms Zhang, because your request was as much about not vaccinating so that you could avoid the problem of being required to go to work and not being able to work because you weren't vaccinated, that's really in part what the flexible working request was about, wasn't it?‑‑‑Mr Harrington, I reject your proposition because there's no evidence that you prove what you have just said. The evidence shows that I ‑ ‑ ‑
PN365
Ms Zhang, you were asked to file submissions, you were directed to file submissions and we've got exhibit 1. The first 22 paragraphs - 23 paragraphs of your submissions, the first 23, the very first topic that you address in some detail is the COVID vaccination mandate heading, 'Science', heading 'Privacy Act', heading 'Obligation, work occupational safety, employment contract, religious belief, protected characteristics, further laws, regulations and policies.' When addressing this dispute notification for flexible working the very first topic that you tackle is an attack on the vaccination mandate, do you agree with that proposition?‑‑‑It is because the vaccine mandate put a lot of pressure and also coerced me into the workplace and that is not the reason why I applied formally for the flexible working arrangements so, Mr Harrington, I oppose your proposition in linking the COVID mandate into the flexible working arrangements.
PN366
THE DEPUTY PRESIDENT: So, Ms Zhang, do you say that all of that stuff in your submissions is irrelevant and I should ignore it?‑‑‑No, it's coercion that I have experienced in my workplace.
PN367
But do you say it's irrelevant - you don't say it's irrelevant, you say it's relevant?‑‑‑Correct.
PN368
Well, then Mr Harrington's entitled to ask you the questions he is.
*** MARINA ZHANG XXN MR HARRINGTON
PN369
MR HARRINGTON: It's relevant because what caused you to make this flexible working request - what prompted it was the fact that you did not vaccinate back then, will not vaccinate and you know you can't go to the office if you're not vaccinated. That's what caused the application for a flexible working request, Ms Zhang, isn't it? In truth, that's it?‑‑‑Mr Harrington, in truth, I have been requesting flexible working arrangement informally with my team leader Ms Sheila Wandue and our financial controller. I have this in evidence back in 5 March 2021, that is when no one was talking about vaccine mandates therefore ‑ ‑ ‑
PN370
Ms Zhang, you're not telling the truth to this Commission about what caused you to make this flexible work arrangement application on 22 November. You're not telling the truth about this, are you?‑‑‑Mr Harrington, I reject your statement that I'm not telling the truth. All I said was truth and nothing but the truth. I have evidence to show that.
PN371
Ms Zhang ‑ ‑ ‑
PN372
THE DEPUTY PRESIDENT: Ms Zhang, sorry, can I ask you this, given that your eight‑year‑old daughter wouldn't have been required to resume school until sometime after Australia Day in 2022, why did you want your request to commence on 11 January 2022?‑‑‑The reason because I will be only employed 12 months from 11 Jan 2022 because I started on 11 Jan 2021.
PN373
Yes, but why from that date, you didn't need to look after your children because they were home schooling from that date, did you?‑‑‑Mr Deputy President, the reason why like I mentioned to put in that specific date, 11 Jan 2022 to commence the flexible working arrangement is not because - that date itself is not relevant because ‑ ‑ ‑
PN374
It's relevant because it's in your application, that's the date you wanted to start?‑‑‑It is prior to the commencement of the school term because that is when - that I'm only entitled because I phoned the Fair Work number - not the Commission, the other Fair Work number that I found out that I'm only entitled to require flexible ‑ ‑ ‑
PN375
Under the VNES, I understand. I understand that but you didn't need, on your version of events, flexible working arrangements until after your daughter commenced school?‑‑‑Okay. I got your question, yes I would only need the flexible working arrangement from - for example, 13 Jan 2022.
PN376
Yes?‑‑‑I agree with you, yes.
*** MARINA ZHANG XXN MR HARRINGTON
PN377
But you didn't say that, you nominated 11 January?‑‑‑Because the sole intention to nominate 11 January is because that's where my 12‑month continuous employment was complete, that's the only reason why.
PN378
Well, just on that issue your request - the request was made pursuant to - or purportedly under section 65(1) and (1)(a) as you indicate there so you were seeking to invoke the National Employment Standards, yes?‑‑‑Correct.
PN379
Yes. And you made that request on 22 November 2021?‑‑‑Yes.
PN380
And you knew then, didn't you, because of advice you'd been given by the Fair Work Ombudsman that you were not entitled then to make the request?‑‑‑Yes.
PN381
All right.
PN382
Yes, Mr Harrington?
PN383
MR HARRINGTON: Ms Zhang, I'm going to give you one last opportunity to tell the truth about why it is you made the application for flexible working arrangement, it wasn't, in truth - back in November it wasn't in truth about your children, it was about the vaccine mandate and the requirement that you had to vaccinate if you wished to come to the office, that's really what it was about, wasn't it?‑‑‑Mr Harrington, like I have made the statement under oath through this period with you which is my pleasure to talk to a solicitor, that I have mentioned that I have been aware of the masks damages to the children eight months before today - before they (indistinct) which is about - I'm not able to do the calculation right now but much earlier, I have been monitoring the situation of the masks mandate especially on school and back then my children or my daughter, eight‑year‑old daughter was seven before October, she was in year 2 so I didn't really have to make a strong point than what I'm doing right now to make it formally that I need to work from home in that sense.
PN384
Ms Zhang, this is about you. Ms Zhang, put the masks to one side, I'm going to be very clear to you, it was about you. It was about you having a strong view about not vaccinating and you didn't want to vaccinate and therefore if you got a flexible work arrangement to work five days from home you knew you could avoid vaccination. That's what this application is all about, isn't it?‑‑‑Mr Harrington, if I was solely based on that proposition I could have resigned and applied for another job which does not require a vaccine mandate because there are plenty of jobs especially in the Federal Government Agency that does not require vaccine mandates.
*** MARINA ZHANG XXN MR HARRINGTON
PN385
Ms Zhang?
PN386
THE DEPUTY PRESIDENT: Mr Harrington, just hold on.
PN387
Ms Zhang, the question that Mr Harrington is asking you is more than reasonable given how you described the dispute in 2.1 of your dispute notification. Did you want to read that?‑‑‑Could you please direct me to the right page?
PN388
Well, this is your dispute notification that you filed on 15 December so this is after you've made the request and the answer to question 2.1 which is on page 5 of that form sets out what you say the dispute is about and you don't say anything in there about your daughter having to wear a mask. You don't say anything there other than making contentions about vaccine mandates which I assume is intended by the reference to a medical procedure?‑‑‑Because back then, Mr Deputy President, I regarded my education home schooling my children as a private matter (indistinct) ‑ ‑ ‑
PN389
Well, no, Ms Zhang, you've just told me that what you were motivated to do is because you were anticipating that mask mandates would continue and that's why you made the request, that's your evidence and you made that request in November of - on 22 November 2021. Less than three weeks later you notify a dispute because the employer hasn't responded to your request. That's what motivated your dispute because it didn't reject it at that stage, it didn't say anything, yes?‑‑‑Mr Deputy President, yes, because I had to submit the home school application before the term starts ahead of ‑ ‑ ‑
PN390
Can you just - I am just going to ask you to listen to my question and answer the question, all right? So, yes, it was because the employer refused or didn't take steps to respond to your request. You made a request, three weeks later it hadn't responded. The National Employment Standards require a response to be given within 21 days, you then lodged a dispute notification. In that dispute notification you don't say anything, on my reading of it, that you were concerned - that you needed to look after your daughter because she wouldn't be able to attend school in the following year because she'd be required to wear a mask, you say nothing about that and you say everything about coercion and vaccine mandates, so‑called. That's all you say?‑‑‑Mr Deputy President, I didn't print out the first submission with me at the moment, I believe what you said is truth but I - let me just expand because I regarded my - this home school matter as an issue ‑ ‑ ‑
*** MARINA ZHANG XXN MR HARRINGTON
PN391
Well, I don't - I actually, respectfully, I don't need you to explain, I'm just pointing that point out and this is the purpose of Mr Harrington's question, he's asking you and giving you a fair opportunity to, in his words, answer truthfully because I suspect at some point he's going to ask me to make a finding that you were not giving truthful evidence and this is what he's putting to you, so understand that. And the context that I've just discussed with you is why he's asking you these questions.
PN392
So, Mr Harrington, continue.
PN393
MR HARRINGTON: Thank you. Ms Zhang, you signed the form F10 on 15 December 2021 when you lodged it, didn't you?‑‑‑Yes.
PN394
You had filled out that document yourself, didn't you ?‑‑‑Correct.
PN395
It is accurate and honest information that you populated into that document, isn't it?‑‑‑Correct.
PN396
And thus it is the case that this dispute is about protection of your private medical information, wasn't it?‑‑‑Mr Harrington, like I have made in my statement and also my understanding that the form you are referring to - sorry, which form are you referring to?
PN397
I'm referring to the form F10 and the Deputy President took you to 2.1 in that document about the dispute, what is the dispute about?‑‑‑Sorry, Mr Harrington, I know that I have submitted myself but I did not print it off, I have it in my email as a electric copy. I can confirm everything I wrote there was by myself given that I don't have it in front of me right now, I agree with you and also Mr Deputy President says but the only thing I don't agree is you implied the intention for me to - about this dispute is so late about - only caused by the vaccine mandates which is what I'm not able to agree. But I agree that the form I have submitted and signed by myself (indistinct).
PN398
You asserted in the form F10 at 2.1, para 4 as follows:
PN399
My employer is using coercion to make me undergo a medical procedure against my will and is using the threat of stand down without pay or termination of my employment to get compliance.
PN400
You wrote those words, didn't you?‑‑‑Correct.
*** MARINA ZHANG XXN MR HARRINGTON
PN401
That was the nub or the heart of the dispute, wasn't it?‑‑‑Mr Harrington, the heart of the dispute of that form as I have ticked somewhere is about flexible working arrangement because I phoned Fair Work Commission that I am not getting the response from my employer hence I wasn't sure should I submit this form or not because I'm not getting a rejection, I'm not getting a confirmation and the lady on the phone spoke to me, said I just put down as what I think the employer had done. So in that opinion - in that time frame I thought that the employer had rejected my request for flexible working arrangement, it's not because that I have a different point of view about COVID vaccine mandate towards my employer that I submit this form. I have ‑ ‑ ‑
PN402
You said - sorry, Ms Zhang. You said coercion to - is it a serious allegation to allege coercion against an employer? Is that serious do you think?‑‑‑The coercion I was referring to was the pressure they put on in terms of the vaccine and also the discrimination ‑ ‑ ‑
PN403
(Indistinct) make me undergo a medical procedure, do you mean in your form F10 by the expression, 'A medical procedure' vaccination, is that what you are referring to?‑‑‑Correct.
PN404
And back then, 15 December, you were clearly and profoundly opposed to vaccinating, weren't you?‑‑‑Correct. I have always had my stance. I don't change that but that has nothing to do with the flexible working arrangement form.
PN405
What you've done, Ms Zhang, is that you've sought to dress up your conflict, your dispute with your employer about the vaccine mandate, you've window dressed it by referring to the needs to take care of your children and assist your children. You've used that as window dressing to cover over what the real dispute is and the real dispute is your refusal to vaccinate, isn't it?‑‑‑Mr Harrington, I thank you for you to come to this conclusion or proposition. I don't have to window dress anything. I stand my position but that position has nothing to do with the flexible working arrangement because the fact that I have made the flexible working arrangement conversation with my team leader and financial controller much earlier on, back in Feb, late Feb or March has ‑ ‑ ‑
PN406
Ms Zhang?‑‑‑I do not agree with your window ‑ ‑ ‑
PN407
(Indistinct) truth about that because when you were asked to describe your dispute, in the form F10 you sat down and you typed it up and you described a dispute about mandatory vaccination, didn't you?‑‑‑Because that is a coercion that I have experienced in my workplace together with discrimination.
PN408
You also - yes, well that's a nice segue because you talk about discrimination in your recent submissions to this Tribunal in the exhibit 2, the reply to the CFO witness statement, you say this at paragraph 30:
*** MARINA ZHANG XXN MR HARRINGTON
PN409
Applicant will not decline her position in terms of COVID vaccination.
PN410
Does that mean you will not resign, is that what you mean by that, Ms Zhang?‑‑‑Let me find the right paragraph.
PN411
Paragraph 30?‑‑‑Yes. You can ask my - could you please ask me the question again?
PN412
At paragraph 30 your first sentence:
PN413
The applicant will not decline her position in terms of COVID vaccination.
PN414
Do you mean by that that you will not resign from your employment, is that what you mean?‑‑‑I'm trying to get my head around why you link this with my resignation, (indistinct) ‑ ‑ ‑
PN415
THE DEPUTY PRESIDENT: He's just asking you what you mean by that statement, that's all. He's reading it as though you mean you won't resign, is that what you meant or did you mean something else and if it was something else, could you explain, that's the question he's asking?‑‑‑Thank you. I was responding to the CFO statement of witness 40 - paragraphs 45 to 47, I was responding to her words and ‑ ‑ ‑
PN416
MR HARRINGTON: Ms Zhang, just please tell us what you mean by this sentence, that's all I'm asking. What do you mean by that sentence at paragraph 30 what do you mean?‑‑‑Paragraph 30 is talking about the coercion that I have been experiencing at workplace, the place - the first sentence that you are quoting, applicant - which referring to myself:
PN417
Will not decline her position in respect of COVID vaccination -
PN418
- is the stand that I have made but I cannot link my head around to the recognition (indistinct).
PN419
Ms Zhang, sorry, it's very simple. What do you mean:
PN420
Will not decline her position -
*** MARINA ZHANG XXN MR HARRINGTON
PN421
- what do those words mean?‑‑‑Because my position - all right. I'll put in this way, Mr Harrington.
PN422
Sorry, do you mean you will not change your position on COVID vaccination, is that what you mean?‑‑‑Correct.
PN423
All right.
PN424
THE DEPUTY PRESIDENT: Sorry, you mean resile, do you want to - you're not going to walk away from your position on vaccination?‑‑‑Correct. Thank you for clarifying that.
PN425
That's all right. That's all Mr Harrington wanted to know.
PN426
MR HARRINGTON: And then you go on to say this because you've used the expression for discrimination, you say:
PN427
She is relying -
PN428
- talking about yourself:
PN429
She is relying on her religious belief being a protected attribute under the Equal Opportunity Act -
PN430
- that's you, have I got that right?‑‑‑Correct.
PN431
Now, what religious belief do you have as such that's a protected attribute here, what do you mean by that?‑‑‑Thank you, Mr Harrington, for letting me to explain that COVID vaccination is not a normal vaccination and the production of such or so‑called vaccination against my Christian religious belief because of the use of foetus that is a killing life that I cannot accept anything that injecting to my body is from the death of another human being even though they were not born and the Equal Opportunity Act I was referring to was related to - later on of the paragraph talking about Parks Victoria is committed to the equal opportunities among Aboriginal issues, gender equality but I have been facing the discrimination because of my belief which is different to those ‑ ‑ ‑
*** MARINA ZHANG XXN MR HARRINGTON
PN432
Ms Zhang, what evidence are you producing to this Commission that any vaccination that is on the market and approved presently is a product of foetal experimentation? What evidence do you have of that?‑‑‑This is the same comment that Dr Avery Jackson - sorry, Avery Jackson and Dr Peter McClon and also the program that I have been following.
PN433
Someone has said on the Internet somewhere there's foetal experimentation involved in the production of a or some vaccines and therefore you accept that as truth and fact, do you?‑‑‑COVID vaccine to be specific, correct.
PN434
Well, which vaccine?‑‑‑Pfizer and Moderna and also another they are produced in such a short time based on the experiments and also the data obtained from foetus and also Johnson & Johnson COVID vaccines.
PN435
Did you get that information off the Internet, did you?‑‑‑Correct because they are American doctors.
PN436
And so - all right. So at your paragraph 30 you're saying that what the respondent, Parks Victoria is doing is discriminatory and contrary to your religious beliefs, have I got that right?‑‑‑Yes.
PN437
THE DEPUTY PRESIDENT: When you say, 'Christian belief', are you catholic or ‑ ‑ ‑?‑‑‑Pentecostal Christian.
PN438
I see. And do you understand what the Vatican's position is on COVID vaccination?‑‑‑Mr Deputy President, could you please repeat your again what position you are talking to?
PN439
The Vatican's position?‑‑‑I'm not aware what is Vatican position.
PN440
The Pope's position on (indistinct)?‑‑‑Deputy President, I'm not following what the Pope says because I'm not showing any disrespect for but what he believes is not what I believe.
PN441
All right. So it's your belief not teachings of your religion?‑‑‑Because Pope is not part of Christian, we don't worship Pope, we don't call him as being the father, we worship Jesus as the son of the Holy God and the Holy Spirit and the Father. Sorry. Excuse me.
PN442
Yes, all right.
*** MARINA ZHANG XXN MR HARRINGTON
PN443
MR HARRINGTON: Deputy President, I've covered all the topics that I need to cover at this point so I can complete the cross‑examination there.
PN444
THE DEPUTY PRESIDENT: Yes. Yes, all right.
PN445
Well, Ms Zhang, that concludes your evidence. I would normally give you an opportunity to respond to matters arising out of the cross‑examination but I think in the context and the way in which the cross‑examination was conducted that occurred during it so that concludes your evidentiary case. We now might begin with witnesses for the respondent. Ms Zhang, do you want a few minutes to compose yourself or ‑ ‑ ‑?‑‑‑Yes, please.
Yes. All right. Well, look, just before - Ms Zhang.
<THE WITNESS WITHDREW [12.17 PM]
PN447
MR HARRINGTON: Maybe have a five‑minute adjournment.
PN448
THE DEPUTY PRESIDENT: Yes, I was going to suggest a different course but my hands are tied.
PN449
MR HARRINGTON: Ms Li's available when - and I'll be very quick with her at the start, I might have a couple of questions but we can ‑ ‑ ‑
PN450
THE DEPUTY PRESIDENT: Yes. In any event, look, I might just adjourn for, say 15 minutes and my associate will endeavour to contact the applicant via her telephone in the meantime. So we'll adjourn till 20 to 1. I then want to have a discussion about some time constraints that I have this afternoon because I had to list another matter so I'll talk the parties through all of that when we resume.
PN451
MR HARRINGTON: All right.
PN452
THE DEPUTY PRESIDENT: All right. Thank you.
PN453
MR HARRINGTON: Thank you.
PN454
THE DEPUTY PRESIDENT: We're adjourned.
*** MARINA ZHANG XXN MR HARRINGTON
SHORT ADJOURNMENT [12.17 PM]
RESUMED [12.36 PM]
PN455
THE ASSOCIATE: The Commission is now resumed.
PN456
THE DEPUTY PRESIDENT: Yes, before we have Ms Li called, can I just indicate that I had another matter listed to commence at 3 pm this afternoon. I'm making arrangements now to reschedule that matter to commence a 4.15 this afternoon. What I propose to do then is to sit until 1.15 today, have a 45‑minute luncheon adjournment and resume at 2 and then continue through till 4.
PN457
We'll see how things progress in the conduct of this matter and we'll see whether a further date is necessary or whether the remainder of the case can be concluded in writing but we'll discuss that later today.
PN458
Yes, Mr Harrington?
PN459
MR HARRINGTON: Thank you, Deputy President. I call Francis Li.
PN460
MS LI: Yes.
PN461
THE DEPUTY PRESIDENT: Thank you, Ms Li. My associate will administer an affirmation to you now.
PN462
THE ASSOCIATE: Please state your full name and address.
MS LI: Frances Li, (address supplied).
<FRANCES LI, AFFIRMED [12.37 PM]
EXAMINATION-IN-CHIEF BY MR HARRINGTON [12.37 PM]
PN464
THE DEPUTY PRESIDENT: Yes. Thank you, Ms Li.
PN465
Yes, Mr Harrington?
*** FRANCES LI XN MR HARRINGTON
PN466
MR HARRINGTON: Thank you. Witness, could you give your name for the transcript, please?‑‑‑Francis Li.
PN467
Thank you. And could you give your professional address?‑‑‑(Address supplied).
PN468
Thank you. And where are you presently employed?‑‑‑Parks Victoria.
PN469
And what position do you hold there?‑‑‑Chief Financial Officer.
PN470
Thank you. How long have you been in that role?‑‑‑Since 7 December 2020.
PN471
Thank you. Now, I just need to check with you what we call housekeeping, that you're in an office by yourself and no one else is with you, is that correct?‑‑‑That's correct.
PN472
Thank you.
PN473
THE DEPUTY PRESIDENT: Sorry, can I - Ms Li, did you just say that you've been in the position of the Chief Financial Officer since December 2020, is that what you said?‑‑‑That's correct.
PN474
Can I just refer you to your statement at paragraph 1?‑‑‑Yes, that's my employment date from Parks Victoria.
PN475
Yes. All right. So you've been employed since, not in that position since?‑‑‑That's correct.
PN476
All right. Thank you.
PN477
MR HARRINGTON: So you commenced employment on 6 February 2017 with Parks Victoria, is that right?‑‑‑That's correct.
PN478
Okay. And your - you commenced in the role of Chief Financial Officer in December 2020?‑‑‑Correct.
PN479
Thank you. I was just checking with you that there's no one else in the room with you, I think you said that's right?‑‑‑That's correct.
*** FRANCES LI XN MR HARRINGTON
PN480
And also that what you have before you is a hard copy of your statement, is that right?‑‑‑That's correct.
PN481
And can you clarify for us that you do not have any other material in front of you, there's no notes or other material, is that right?‑‑‑That's correct.
PN482
All right. Thank you. I'm not sure whether Ms Zhang will take you to some of her documents but if she were going to do that, do you have them to hand, are they far away? Are they on a screen perhaps?‑‑‑They're in my files but I would need to look for them.
PN483
THE DEPUTY PRESIDENT: Ms Li, what I would I might do to assist is I might have my associate send through a court book that she prepared for my benefit which has all of those documents and which is paginated so that you have that to hand and I will ensure that that's also sent to Ms Zhang and when Mr Harrington refers you to one of those documents of the applicant's I'll be able to assist by providing you with a page number in the court book?‑‑‑Thank you.
PN484
All right. So my associate will do that now.
PN485
Yes, Mr Harrington?
PN486
MR HARRINGTON: Thank you.
PN487
I want to take you then, Ms Li, to a copy of your statement and do you have that in front of you?‑‑‑I do.
PN488
Thank you. And (indistinct) to 47 paragraphs and then could you - sorry, clarify that for me, just confirm that?‑‑‑Paragraph 47.
PN489
Yes, it runs to 47, right?‑‑‑Yes. That's correct, yes.
PN490
Thank you. And there are documents attached to it as well and so I just want to make sure again that we have all the relevant documents, on my count, it goes to FL9 which is a fair payments policy but I'll just check that I've included - yes, every one of them is that right? Have you got all those attachments to your statement as well?‑‑‑Yes. Yes.
*** FRANCES LI XN MR HARRINGTON
PN491
Thank you. Now, have you had an opportunity to read that statement in recent days?‑‑‑Yes, I have.
PN492
I want to offer you the opportunity to make any amendments or corrections that you'd like to make and I might be able to help you because I'm aware there are a couple so I'll take you to a couple and if I miss anything, please let me know. I'm trying to move through it sequentially. Paragraph 9 at (g) and (h) and these are the key tasks to be performed by Ms Zhang and I cross‑examined Ms Zhang on this and said that you would not be pressing (g) and (h), processing credit memo requests, collecting debts?‑‑‑Yes. Ms Zhang hasn't been asked to perform these tasks.
PN493
All right. Thank you. So we can just literally strike a line through those, those are not her tasks, is that correct?‑‑‑Yes. That's correct.
PN494
All right. Thank you.
PN495
Deputy President, if you could just make that amendment by a strikethrough perhaps.
PN496
THE DEPUTY PRESIDENT: Yes, I have. Thank you.
PN497
MR HARRINGTON: Thank you.
PN498
Now, can I take you then to paragraph 16 and this is - the paragraph addresses what's called the 2021 hybrid work model?‑‑‑Yes.
PN499
And it says at the third last line or the fourth last line:
PN500
The hybrid working model is 60 per cent of working hours to work from home.
PN501
Do you wish to say something about the accuracy of that?‑‑‑That's not accurate. It's 60 per cent of working hours to be worked from the office, I think it should be.
PN502
So it should change to 'Work hours to be worked from' - delete 'Home', and just add in the 'Office', is that right?‑‑‑Yes. That's correct.
PN503
If I can make that correction, please, Deputy President.
*** FRANCES LI XN MR HARRINGTON
PN504
THE DEPUTY PRESIDENT: Yes, I have. Thank you.
PN505
MR HARRINGTON: And I then want to take you to the document that's been referred to as FL9 and I'll take you to the paragraph in a moment. That is the fair payments policy and that's exhibit at FL9 and you have said at 22 that:
PN506
Parks Victoria is required to comply with Victorian Government Fair Payment Policy -
PN507
- that's what you've asserted there. Now, what do you have to say about that?‑‑‑Parks Victoria are required to comply with Victorian Government Payment Policy. Up until 31 December 2020 Parks Victoria is covered under the Fair Payment Policy. Now, from 1 January 2021 Parks Victoria is under Australian Supplier Payment Code.
PN508
Sorry, that's the Australian Supplier ‑ ‑ ‑?‑‑‑Supplier Payment Code.
PN509
And I think the consequence, Deputy President, of that is that the first sentence of 22 could stay. The rest should probably be deleted because it predates the applicant's employment and I'm not going to rely upon the sentence or FL9 itself.
PN510
THE DEPUTY PRESIDENT: Yes. All right. So I'll delete everything from 'Parks Victoria' commencing in the second sentence through to 'FL9.'
PN511
MR HARRINGTON: Yes. Thank you.
PN512
Ms Li, is there anything else that you'd like to correct?‑‑‑And similarly, paragraph 25 also makes reference to Fair Payment Policy which is in the last sentence.
PN513
We can delete that sentence, I think?‑‑‑Yes, please.
PN514
Thank you, Deputy President. That could be deleted.
PN515
Is there anything else, Ms Li?‑‑‑There are a couple of typos which mainly relate to referring my financial controller as 'Ms' and 'He', he's really a he and it's 'Mr' so that's just for absolute accuracy, that's in paragraphs 19, it should read 'Mr Vanasingh.'
*** FRANCES LI XN MR HARRINGTON
PN516
Yes. That's the second last line I think, yes?‑‑‑That's correct. Yes, and in paragraph 36(c) in the first sentence it should read, 'Financial controller that he requested (indistinct)', just for accuracy.
PN517
So strike out the 'S'?‑‑‑Yes, please.
PN518
Thank you. And those are the amendments you'd like to make?‑‑‑Yes, that's correct.
PN519
Thank you. Is that statement otherwise true and correct in every particular?‑‑‑Yes.
PN520
And you wish to rely upon that statement and those attachments in giving your evidence before the Commission?‑‑‑Yes.
PN521
Thank you. I tender that.
THE DEPUTY PRESIDENT: Yes. Thank you. I will mark the witness statement of Ms Frances Li comprising 47 paragraphs and eight annexures noting that what was FL9 is not relied on, also noting the amendments that have been made to paragraph 1 in the introduction to this witness' evidence and paragraphs 9, 16, 22 and 25 as well as correcting the typographical errors in paragraphs 19 and 36(c) as exhibit 4.
EXHIBIT #4 WITNESS STATEMENT OF MS FRANCES LI COMPRISING 47 PARAGRAPHS AND EIGHT ANNEXURES
PN523
Yes, Mr Harrington.
PN524
MR HARRINGTON: Thank you. With your leave, Deputy President, I think I really have just one question.
PN525
THE DEPUTY PRESIDENT: Yes, go ahead.
*** FRANCES LI XN MR HARRINGTON
PN526
MR HARRINGTON: Ms Li, if the Commission were to make an order to resolve this dispute that Ms Zhang should be permitted to work flexibly from home full‑time, five days a week, the first question I have - I'll break it into two. The first question is what effect would that have on Ms Zhang's team leader, Ms Sheila Wandue?‑‑‑Yes, so Ms Sheila Wandue, being the supervisor, is currently stepping in into doing part of Ms Zhang's work. This has resulted in herself can't complete her work in time. Her work is mainly to do with team leadership, coaching and the other side of the transaction services team, which is accounts receivable which entails quite complex debt collection and debtors' reporting, so those tasks are currently not being performed by herself and has been having flow‑on impact into her manager, which is the financial controller.
PN527
I'll stop you there just to clarify something. To the best of your knowledge - because we're only asking about what you know?‑‑‑Yes.
PN528
What are those things that Ms Wandue, the supervisor/team leader, has to step in to do because Ms Zhang is absent?‑‑‑This is mainly to do with the tech printing, the mail sorting, as well as some of the other tasks which requires the physical copies of invoices or financial transaction records to be prepared in Morwell office.
PN529
The next question I have which is aligned to this is in the event that an order were made resolving the dispute and allowing full‑time, flexible, five days a week work from home, what is the potential impact upon the staffing levels and any need that the organisation might have to bring someone else in - to expend further revenue to bring someone else in?‑‑‑We will be required to find a backfill resource at the transaction services officer level in order to relieve Ms Wandue from doing that part of that role.
PN530
When you say backfill resource that literally means, does it, to employ a person and - on what basis, casual, full‑time, part‑time? Can you make an assessment of that?‑‑‑Yes, subject to budget availability and that's our key concern. I will say at the minimum level probably part‑time, two to three days a week, in order to support this function.
PN531
When you say subject to budget availability, if you were required to do that by next week because we got a decision next week and it went the way of a five‑day, fully flexible work arrangement for Ms Zhang so you had to adjust, what is the budget position in relation to being able to afford the backfill position?‑‑‑There is no budget for that at this moment.
PN532
Thank you. I have no further questions.
PN533
THE DEPUTY PRESIDENT: Yes, thank you, Mr Harrington. Ms Zhang, now you have an opportunity to cross‑examine this witness if you wish.
*** FRANCES LI XN MR HARRINGTON
MS ZHANG: Thank you, Mr Deputy President.
CROSS-EXAMINATION BY MS ZHANG [12.53 PM]
PN535
MS ZHANG: Thank you, Ms Frances Li. I would like to bring our attention to exhibit 4, your witness statement, paragraph 36(c). When the reference to financial controller, 'she' has been corrected into a 'he'. In regarding to the instance that you mention that your own words says:
PN536
A different FTS team members was required to attend to this request in order to complete the task and while the supplier invoices have been moved to electronic storage since July 21st(sic), at times physical copies of financial records must be located and assessed by FTS team members -
PN537
I respect you being my financial chief officer. I honour you for that position and I would just like to have the evidence that where - which authority do you rely on or what power do you rely on to say that financial at times - so sometimes physical copies of financial records must be located and assessed?‑‑‑I'm not sure about your question. Can you clarify, is your question asking for my power or is it necessary to locate physical copies of financial records?
PN538
Ms Li, I was asking you on what basis you are referring to that the physical copies of financial records must be located and assessed by FTS team?‑‑‑That's based on operational needs.
PN539
Do you have any government guideline on that given all the - your own words, the supplier invoices have been moved to electronic storage since the middle of 2021. Do you have any government guideline or authorities that says some other document has to be or must stored and located physically in 65 Church Street, Morwell?‑‑‑Okay. So the financial records where they have been digitised, they replace the hard copies. What here I referred to are those ones that are predated to the digital records. So we started digital records I think for invoices from July 2021 and before that the invoices are all in the hard copy versions either in Morwell office or off site. At times we would be required to find these hard copy of invoices which did not exist - or do not exist in digital copy and those copies all had to be found either in Morwell office or from the secondary storage which we can call back into Morwell office to be assessed. The example I'm giving here is a capital project which typically span across multiple financial years, so, yes, the digital records of supply invoices available from July 2021, but projects records before that will be requiring hard copies of invoices to be called back from secondary storage.
*** FRANCES LI XXN MS ZHANG
PN540
Thank you, Ms Frances Li. So on that point are you saying that those financial records that must be located and assessed by FTS team are referring to those previous invoice copies that have not been digitalised storaged? That means before July 2021?‑‑‑They are hard copies of invoices before July 2021, yes.
PN541
Okay, correct. You also just reaffirmed that there are two sources of hard copies from July '21, one being from Jan '21 to June '21 processed by the current FTS team, and before Jan 2021 there is invoices processed by previous FTS team; is that correct?‑‑‑Yes, they are processed by the FTS team.
PN542
Ms Li, I was just trying to bring the attention that there are a transitioning happening from the old FTS team from Melbourne CBD and basically all the team members were resigned, and that's why I came to this position available and that's why has my employment and the rest of the team basically started early 2021. There are some documents processed by my previous team which I had no idea how - I'm not able to comment on where they store those records and hence that's what you're referring to, because of this transitioning happening, hence some invoices must be recorded and located and assessed by FTS team.
PN543
MR HARRINGTON: Sorry, before the witness answers, I'm not being critical Ms Zhang but that's not really a question. That's a statement with a question mark at the end of it. Perhaps if Ms Zhang could put a crisp or more precise question to the witness about that subject matter so she can answer it clearly.
PN544
MS ZHANG: Thank you.
PN545
So the reason why I bring this matter is because even though that you were saying that 'she' to become a 'he' as a grammatical mistake, but that could on the balance of probabilities also referring to your conversation with previous team member which who resigned and leave this vacancy open, so hence my question is, Ms Li, whether or not you confirm that there are invoices require hard copy -hard physical copies - from the previous team, not from the existing FTS team in Morwell?‑‑‑Financial records are kept for a legally required duration irrespective of what finance team members and who is doing what. They are stored per the legal requirement for a financial record. They are stored in secondary storage and/or in our Morwell office. When they are called upon our current finance team members are to look for these records and record those required into the office to be assessed and provided to the requester.
*** FRANCES LI XXN MS ZHANG
PN546
Do you also confess that this previous record, albeit complying to the seven years storage guideline, have not been physically transferred to the Morwell office to this day?‑‑‑They have been transferred to our secondary storage and they have been archived per the requirement. So, as I said, they are either in Morwell office and/or they are stored in an archive location. The previous team - if that's the question - had fully transitioned the financial records as per the requirement before their departure.
PN547
Thank you, Ms Li, but you didn't answer the question whether or not are there any invoices physically available from - which means were processed by the previous FTS team in Morwell physically right now - - -
PN548
THE DEPUTY PRESIDENT: Ms Zhang, if I have understood Ms Li's evidence correctly she says documents are kept in two locations. Some are kept - and presumably by 'some' the more recent ones - at the Morwell office because they were processed by the current team located at Morwell and there were some other documents which predate the creation of the creation of the Morwell team and they're held in secondary storage, which can be recalled - that is, called up - and delivered to the Morwell office. That's what I understood her evidence to be.
PN549
MS ZHANG: Thank you, Mr Deputy President, so my question is has those secondary - those invoice copies saved in the secondary storage been transferred to Morwell office?
PN550
THE DEPUTY PRESIDENT: I would have thought the answer to that question is obvious. If they're in secondary storage they're not in the Morwell office.
PN551
MS ZHANG: Correct. Thank you, Mr Deputy President, to clarify.
PN552
THE DEPUTY PRESIDENT: There is nothing to clarify, it was self‑evident.
PN553
MS ZHANG: Correct, thank you.
PN554
So, Ms Frances Li, when you say in your own words that a different FTS team members was required to attend to this request in order to complete the tasks, so how could that be possible if it's not within the Morwell office? How could another team member possibly obtain that physical copy from the secondary storage facility?‑‑‑Because they can contact the secondary storage and record a physical copy back into Morwell office.
*** FRANCES LI XXN MS ZHANG
PN555
Thank you for clarifying that. You were saying that because Ms Zhang - which means myself - does not have access to the files to the Morwell office, so does it mean that you were putting the request either to Ms Sheila Wandue, my team leader, or to myself to give this request but I wasn't able to fulfil such request, hence another team member was required to call the secondary storage facility to obtain such copy? Do you confess that's the truth?‑‑‑I'm not sure of the wording 'confess', but I will try to answer that, anyway. Anyone can recall a financial record. Obviously any team member can recall the records back, but we can only send the record to the Morwell office which means someone would need to be in the office to receive these records and subsequently do some assessment of - send it to the requester whenever required. The key point here is someone needs to be in the office to receive those records coming back from the secondary storage.
PN556
Thank you, Ms Li. You didn't answer the question. My question was whether or not you or someone in the management team requested myself to look for those invoice copies and because of my inability to access the office building has called a different FTS team to locate such invoice?‑‑‑Yes, that is correct, and this is a real life example, Ms Zhang, that where we refer to - you talked about this potentially is a previous example. This is actually not, this is a recent example when the financial controller called you to attend in a case to provide some evidence and you mentioned in your email to him that you cannot provide - that's not available to you. I think that's what is presented to him. Subsequent to that, he requested other team members to attend to this task.
PN557
Ms Frances Li, you did not quote the whole truth - the complete truth. I recall that instance that you are referring to. It was to do with petty cash - sorry, it was to do with - yes, a petty cash reimbursement. That particular invoice was not posted out - that particular - sorry, I'm just trying to bring my memory. That particular instance was I requested a digital copy from the team who is located in Dandenong Range Garden to submit the digital copies to me and I forward it to the financial controller, Mahish - Mr Mahish. I don't recall that you have stated the whole truth?‑‑‑That's not correct.
PN558
MR HARRINGTON: Ms Zhang might have to be reminded that she is to ask questions, not - - -
PN559
THE DEPUTY PRESIDENT: Yes.
PN560
MS ZHANG: Sorry, Mr Deputy, did I do anything wrong?
PN561
THE DEPUTY PRESIDENT: You have had an opportunity to give evidence and you have given your evidence. This is your opportunity to cross‑examine this witness, not to supplement your earlier evidence.
PN562
MS ZHANG: Okay. All right. Thank you.
*** FRANCES LI XXN MS ZHANG
PN563
Moving along, thank you, Ms Frances Li, you mentioned in your paragraph 10 that the FTS team was then relocated to Morwell as part of the Morwell (indistinct) program. Do you confirm that this team of the new employees, including Ms Sheila Wandue - which means Ms Sheila Wandue herself, being the team leader - is new to the office to Parks Victoria?‑‑‑Sheila Wandue started with us in early 2021.
PN564
That early 2021 is after I have started. The start date is a few weeks after my starting date?‑‑‑I can't recall the exact starting date of Sheila Wandue.
PN565
Okay. Thank you. Also from the commencement of my starting date, that Parks Victoria is committed to provide myself with a work laptop without my initial request. It was given to me voluntarily?‑‑‑You have been provided with a laptop.
PN566
So that means Parks Victoria voluntarily provided the laptop as part of the employment contract; is that correct?‑‑‑I confirm that you have been provided with a laptop and that's not stipulated in the contract, if that's the question.
PN567
Is it a straight yes or no, Ms Frances Li, that - - -
PN568
THE DEPUTY PRESIDENT: She has answered the question. Firstly, she agrees you have been provided with a laptop. She says that it's not a stipulation of your contract, which was the underlying assertion in your question.
PN569
MS ZHANG: Thank you.
PN570
THE DEPUTY PRESIDENT: I am mindful of the time, as I indicated earlier, so I'm going to adjourn until 2 pm to enable people to have something to eat and a bit of a break. We will have the luncheon adjournment now.
PN571
Ms Li, you will have to, unfortunately, resume your evidence. I don't like breaking evidence up in this way, but it's just the circumstances that we're faced with. So we're going to adjourn until 2 o'clock and you can re‑join shortly before then, Ms Li, and we'll resume the cross‑examination.
PN572
MR HARRINGTON: Could I just ask that you make clear to Ms Li that I'm not able to have discussions with her.
PN573
THE DEPUTY PRESIDENT: Yes, you shouldn't have any discussion with anybody about your evidence since you're under cross‑examination still?‑‑‑Yes, I understand that.
*** FRANCES LI XXN MS ZHANG
All right. Thank you. We are adjourned.
<THE WITNESS WITHDREW [1.10 PM]
LUNCHEON ADJOURNMENT [1.10 PM]
RESUMED [1.57 PM]
PN575
THE DEPUTY PRESIDENT: Yes, Ms Zhang, you can continue your cross‑examination of Ms Li.
MS ZHANG: Thank you, Mr Deputy President.
<FRANCES LI, RECALLED [1.57 PM]
CROSS-EXAMINATION BY MS ZHANG, CONTINUING [1.57 PM]
PN577
MS ZHANG: Ms Frances Li, our conversation regarding the laptop was before the break so I will just complete that - finish that topic with the laptop. Do you confirm that Parks Victoria by giving Ms Zhang - who is myself - a laptop is to arm myself to work remotely?‑‑‑I can only confirm that you have been provided with a laptop to enable you to work in a flexible manner.
PN578
Okay. Thank you. In many emails from the CEO communication the CEO is talking about Victoria is upholding inclusive and equal opportunity values including upholding Aboriginal beliefs, values and gender equality. Do you agree with that?‑‑‑Yes, I'm supportive of that.
PN579
Thank you. On your witness statement, paragraph 9, you have listed a number of tasks that required Ms Zhang, myself, to perform. You have crossed 'GNH' so the question I'd like to confirm with you is for point (b), 'Updating supplier details'. Given supplier set‑up is managed by procurement team, is this updating supplier details - should be part of the procurement team to action?‑‑‑Not necessarily. It's part of the financial transaction services team's remit to do that, as well.
PN580
In what capacity financial transaction services team is required to update supplier details and is that binding?‑‑‑Sorry, could you repeat that question for me, please.
PN581
Yes, sure. So in what capacity that accounts payable or financial transaction services team member required to update supplier details and, if any action taken by accounts payable in that sense to update supplier details, is that binding? Is that legally authorised by law?
*** FRANCES LI XXN MS ZHANG
PN582
MR HARRINGTON: Sorry, Deputy President, I'm not sure it's for this witness to give an answer to a question which would be an opinion - a legal opinion - on what is authorised by law. I'm not sure how that is relevant in a strict sense.
PN583
MS ZHANG: Can I explain?
PN584
THE DEPUTY PRESIDENT: Yes, go on.
PN585
MS ZHANG: Mr Harrington, because procurement team has the legal authority. I wasn't sure whether it's Parks Victoria policy or law - - -
PN586
THE DEPUTY PRESIDENT: Ms Zhang, you say that but there's no evidence about that before me, is there?
PN587
MS ZHANG: What evidence are you talking about?
PN588
THE DEPUTY PRESIDENT: You are asserting that somebody has a particular legal authority. I have no evidence about that.
PN589
MS ZHANG: Exactly.
PN590
THE DEPUTY PRESIDENT: Yes.
PN591
MS ZHANG: No, so that is why I'm asking Mr Li to confirm on what capacity accounts payable in that sense is able to perform updating supplier details job.
PN592
THE DEPUTY PRESIDENT: Are you able to answer that question, Mr Li?‑‑‑It's part of their job description to perform that task.
PN593
MS ZHANG: All right?‑‑‑Just to clarify it - I guess I can clarify - our procurement team performs supplier changes particularly relevant to bank account details for segregation duty purposes, but accounts payable can update things like addresses or, you know, things that are not relevant to bank account details.
PN594
Okay. Thank you, Ms Frances Li. So is that update through Oracle?‑‑‑That is correct.
*** FRANCES LI XXN MS ZHANG
PN595
Is Oracle a software that is stored in the FAP, which is the financial services system that accounts payable can access?‑‑‑That's correct.
PN596
Is it restricted in the office location?‑‑‑It can perform through the financial system.
PN597
Okay. Thank you. On that point (3), 'Creating and updating customer details', being 'customer' referring to accounts receivables, is Ms Zhang required to do - or has Ms Zhang required to perform such task which is outlined by section (e)?‑‑‑Yes, it's part of Ms Zhang's job description.
PN598
Thank you, Ms Frances Li. Has Ms Zhang herself requested to perform section (e) in her complete employment plan with Parks Victoria?‑‑‑Have you requested Parks Victoria or have you been requested?
PN599
Have I been requested by Parks Victoria to create or update customer details?‑‑‑Given that is listed here, I would envisage that that is what I've been informed by my team.
PN600
Do you agree creating and updating customer details is part of accounts receivable role?‑‑‑It's part of the role of a financial transaction services officer.
PN601
Okay. Thank you. Would you agree that for job (a), job (c) and job (f) this can be done on Oracle - or these are all being done on Oracle?‑‑‑A combination of system and (audio malfunction) system.
PN602
Sorry, Frances Li, did you say a combination of system?‑‑‑Correct. For job (a), for example, that entails cheque payment which is generated from system that entails in‑office operations, as well.
PN603
Okay, and job (c), is that also done on the system, on Oracle?‑‑‑It can be done a majority in the system unless a physical copy of the financial records is required, which means that will have to be done partially in the office.
PN604
When you say a financial record is required, would you please clarify required by whom?‑‑‑Prompt cheque payments requires - at times will require substantiation or request substantiation by financial records. At times if the financial records is not in the electronic form, as we previously discussed, it's in the physical format, which means that in‑office operation will be required.
*** FRANCES LI XXN MS ZHANG
PN605
Do you agree that in order to process the prompt cheque - prompt payment request, it has to be authorised by at least two signatures and those two signatories may not be located in the same building, which means such request has to be done via email?‑‑‑The authorisation process can be done by email.
PN606
Thank you. For task (d) and task (i) - reimbursement of petty cash and task (i) provide relevant financial records for audits and other management matters - how often does these two tasks occur?‑‑‑Depending on the time of the year. They were frequent at financial year end, but I'd say often enough.
PN607
Is it on a daily basis?‑‑‑It may not be on a daily basis, but certainly on a weekly basis.
PN608
Okay. Thank you, Ms Frances Li. When you say they provide especially in the - I believe you were referring to end of financial year, such event financial records were requested by auditors, was it in last financial year 2021, June - end of June - was it requested by auditors via email?‑‑‑Yes, because during the lockdown period obviously there is an alternative auditing method. Auditors could not attend the office.
PN609
I would like to move on to paragraph 15, that you have write down that you did not - your own words, 'I did not authorise this', which I believe you were referring to working from home on a full‑time basis, five days per week. The question is are you aware that from 17 September 2021 to October, including late that year, 2021, the lockdown mode still applies, which means work from home is recommended by the government?‑‑‑That's correct, but our operations require people to be in the office and we have - the financial transaction services team, including yourself, have been attending the office during the lockdown period, as well.
PN610
Are you aware that from 11.59 pm, 28 September '21, that Latrobe City Council, part of the regional Victoria, went into a snap lockdown?‑‑‑I wasn't as clear on the dates for Latrobe Valley Council.
PN611
But are you aware that such lockdown occurred during - - -?‑‑‑I wasn't aware.
*** FRANCES LI XXN MS ZHANG
PN612
My last two questions. The second last question is during the paragraphs 24 to 26 you commented, 'This was below the pre‑pandemic service standards.' I believe you were comparing prior pandemic service standard to pandemic service standard, which the pandemic occurred around, safely to say, March 2021 and you came into the office of chief financial officer in December 2020; so technically speaking is this sentence referring to the period of December 2020 to March '21 and after March '21 is the pandemic? Are you comparing - - -
PN613
THE DEPUTY PRESIDENT: Well, the underlying proposition in your question is false. It's a matter of record. The first responses to the pandemic in Australia occurred in March 2020 when the Commonwealth government closed the borders, not March 2021.
PN614
MS ZHANG: Sorry, I forgot about that. Thank you.
PN615
Okay, so I guess my question is in the position of chief financial officer, when you came to the position in December 2020, were you comparing the previous financial transactional services team before '21 to after Jan '21, because that's when the changeover occurred?‑‑‑As in my statement, I joined Parks Victoria in 2017 - in early 2017 - and became director of finance in late 2017. So during late 2017 to late 2020 I was chief director of finance and (indistinct) office and accounts payable and receivable team directly reported to me during that period. In this operation any accounts payable team sat next to me before the pandemic, before the lockdown, so I am familiar with the pre‑COVID standards.
PN616
All right. Thank you. My last question to Ms Frances Li is referring to paragraph - between 28 to 32. You said:
PN617
The team leader -
PN618
which referring to Ms Sheila Wandue -
PN619
is now required to add herself into the roster in Ms Zhang's absence.
PN620
Just in the session before we break you mentioned that Ms Wandue was stepping in to do cheque printing, mail sorting and other tasks required for physical and financial records to be prepared. So my question is do you know or are you aware how long these tasks we just mentioned - how long does it take for the team leader to perform?‑‑‑I can't comment exactly on how long. I can certainly say that these tasks should not be performed by her at her level.
*** FRANCES LI XXN MS ZHANG
PN621
As you mentioned previously, there are altogether three team members of the FTS Morwell team, being me myself and also two other team members. Do you agree that these tasks relating to cheque printing, mail sorting and other tasks requiring physical record to prepared could be performed by the other two team members?‑‑‑I don't agree. This task is required to be performed by three team members.
PN622
So you confirm that these tasks is a teamwork to perform?‑‑‑It required three FT to perform these tasks in addition to all the rests of the tasks.
PN623
Okay. All right, thank you. That's all the questions that I would like to ask. Thank you, Ms Frances Li.
PN624
THE DEPUTY PRESIDENT: Any re‑examination, Mr Harrington?
PN625
MR HARRINGTON: No re‑examination, thank you.
THE DEPUTY PRESIDENT: Mr Li, thank you for your evidence. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [2.13 PM]
PN627
THE DEPUTY PRESIDENT: Does that conclude the respondent's evidentiary case, Mr Harrington?
PN628
MR HARRINGTON: Yes, it does. Thank you, Deputy President. Let me scan for any further documents, but I think Ms Li's statement is the vehicle for all the relevant documents from our perspective, so I think everything is before you.
PN629
THE DEPUTY PRESIDENT: Yes, all right. Ms Zhang, now is the opportunity for you to make any final submissions you might wish to make in respect of your application, so please go ahead.
PN630
MS ZHANG: Thank you, Mr Deputy President. I have a question. My final submission is basically similar to what I have printed out or submitted in response to the respondent's outline of argument. Do you want me to read it or - - -
PN631
THE DEPUTY PRESIDENT: I don't need you to read that, but since that time I have had the opportunity to receive evidence and both you and Mr Li have been cross‑examined, so in light of the evidence you have an opportunity to address me on things like what factual findings I should make and what conclusions I should draw in relation to those that are relevant.
*** FRANCES LI XXN MS ZHANG
PN632
MS ZHANG: Okay.
PN633
THE DEPUTY PRESIDENT: But perhaps, before you start, let me just ask you a couple of questions which might be relevant to the ultimate outcome of your application. The only request that you have made for working from home on a five‑day basis, is that request set out in the 'Working from home request for more than two days', dated 22 November 2021?
PN634
MS ZHANG: Thank you, Mr Deputy President. Like I mentioned earlier during the examination by Mr Harrington, the formal request I put to Parks Victoria was on 22 November 2021. During the break I found evidence - I'm not sure if I can relate to that, but I have requested flexible working arrangement to my team leader as well as financial controller end of February 2021, so just after - one or two months after my commencement of my job.
PN635
THE DEPUTY PRESIDENT: Yes, but my point is that the request you made - there has been no request since the request of 22 November.
PN636
MS ZHANG: No more further than that. That's the last - - -
PN637
THE DEPUTY PRESIDENT: And that is the request you rely upon for the purposes of this application?
PN638
MS ZHANG: Correct.
PN639
THE DEPUTY PRESIDENT: Okay. Well, that request was made for the purposes of the - or the exercise of purported rights under the National Employment Standards, section 65, yes?
PN640
MS ZHANG: Correct.
PN641
THE DEPUTY PRESIDENT: There isn't in that document any request for flexible work arrangements under the relevant enterprise agreement.
PN642
MS ZHANG: Because back then the enterprise agreement was 2016.
PN643
THE DEPUTY PRESIDENT: I understand that.
PN644
MS ZHANG: And I phoned the Fair Work Ombudsman and I had the operator to check it for me that basically our agreement, Parks Victoria, is similar to the industrial work standard, the section 65, and I have also been informed over the phone that - he mentioned that I cannot be worse off regardless of the enterprise agreement because it has to give me the equal or at least the same right by the section 65.
PN645
THE DEPUTY PRESIDENT: That part of the advice, if that was given, is correct, but my point is that the only basis upon which you made the request was you were purporting to exercise your rights under the National Employment Standards.
PN646
MS ZHANG: Correct.
PN647
THE DEPUTY PRESIDENT: Yes, and at that time you were not eligible to make a request.
PN648
MS ZHANG: With regarding that, Deputy President, also referring back to the conversation I had with Fair Work Ombudsman operator, he asked me about my date of commencement and I told him that, 'I have not employed for 12 months yet, but I'm going to from January and my request is going to start from January. Will that be okay?' He said, 'You can make the start date as you wish because you will not be affected', so that's - to answer your question, I believe that's why I put down - - -
PN649
THE DEPUTY PRESIDENT: Okay. Whatever the advice that you received from this person, section 65 requires that there be a request in writing.
PN650
MS ZHANG: Correct.
PN651
THE DEPUTY PRESIDENT: The request in writing is the document that you signed on 22 November.
PN652
MS ZHANG: Correct.
PN653
THE DEPUTY PRESIDENT: Section 65 also says that an employee is not entitled to make the request - i.e., the request in writing - unless they have relevantly completed 12 months' continuous employment, so at the time you made the request - I understand when you want it to operate from, but at the time you made the request you were not entitled to make it.
PN654
MS ZHANG: That's contrary to the advice that I have been given by - - -
PN655
THE DEPUTY PRESIDENT: Well - - -
PN656
MS ZHANG: I am not sure if I can rely on that advice.
PN657
THE DEPUTY PRESIDENT: The person who gave the advice isn't here to give evidence about what advice they gave you, but, in any event, as a matter of fact you signed this document on 22 November. It's the only document in writing making the request and when you submitted it you were not entitled to make a request.
PN658
MS ZHANG: Correct, but I have the request - I'm entitled to make the request now.
PN659
THE DEPUTY PRESIDENT: But you haven't.
PN660
MS ZHANG: The reason being because I have been given the direction - - -
PN661
THE DEPUTY PRESIDENT: Just bear with me. The denial on which you rely was given - that is, your request was denied on the 5th of - - -
PN662
MR HARRINGTON: It's 7 January.
PN663
THE DEPUTY PRESIDENT: Sorry, 7 January 2022. Yes?
PN664
MS ZHANG: Yes, roughly correct, yes.
PN665
THE DEPUTY PRESIDENT: That's the evidence that Mr Li gave and you didn't dispute that.
PN666
MS ZHANG: If I may find that email - - -
PN667
THE DEPUTY PRESIDENT: Paragraph 20 of Mr Li's statement.
PN668
MS ZHANG: Okay, yes.
PN669
THE DEPUTY PRESIDENT: So the refusal on which you rely was also made at a time before you were eligible to make the request.
PN670
MS ZHANG: Correct.
PN671
THE DEPUTY PRESIDENT: So I'm just trying to understand how it is that putting aside anything else, even being within the rubric of the 2021 agreement - how it is that I can even make a determination that a refusal of a request you made which you were not able to make at the time and the refusal being made before you were able to make the request - I can possibly decide whether the employer had reasonable grounds to refuse a request which you were not entitled to make.
PN672
MS ZHANG: Thank you, Mr Deputy President, I understand where you come from. However, I believe section 65 - the interpretation should then be just limited to the time of the submission because the time of submission does not come into operation immediately and my request, as I clearly stated in the submission, that I only want it to start from 11 Jan 2022 - - -
PN673
THE DEPUTY PRESIDENT: I understand that, but tell me how I am to interpret the words, 'The request must be in writing, but the request can't be made until you've completed 12 months' service', other than how it's expressed in the statue and that what you did was make a request in writing before you were entitled to do so.
PN674
MS ZHANG: Thank you, Deputy President. I believe here the request can also be construed in terms of the operation of the request to start from 12 months of continuous employment rather than the set date of signature of such submission of request.
PN675
THE DEPUTY PRESIDENT: Ms Zhang, self‑evidently the request won't operate retrospectively. It can only operate prospectively and it can only operate after the employer gives an approval. The employer has under the NES 21 days within which to respond, so that at the earliest the employer can - the new arrangement comes into operation once the employer gives his or her or its approval which is no later than 21 days after the request is made, but first there must be a request and underlying that there must be an entitlement to make it.
PN676
Now, all of the request and the denial occurred at a time before you were entitled to make a request, so on the basis of those materials I just need to understand how it is that I'm supposed to read words into the statute that aren't there which makes valid a request which appears on its face not to be validly made.
PN677
MS ZHANG: Because, Deputy President, I wasn't sure if my understanding is correct. If my request was invalid, I could have been told during the last - if I could call it a hearing, that my request was invalid, that I would make another request. Given that there is no such order by the Commission for me to submit another request to make it valid, the order only given - - -
PN678
THE DEPUTY PRESIDENT: Ms Zhang, it's not for me to give you advice about how you should conduct your case.
PN679
MS ZHANG: Correct. Thank you, Deputy President. I'm not asking you to give me advice. I am simply - - -
PN680
THE DEPUTY PRESIDENT: That's exactly what you were suggesting. There were underlying problems with your application to begin with. It was made under the wrong agreement and this was an issue that I did raise with you at the time, and I facilitated an amendment to the application. So far as the issue that I'm required to determine, the difficulty I have is that on the face of the request you made it was a request under the National Employment Standards and that request was made at a time before you were entitled, it appears, and the response was also given at a time before you were entitled to make a request.
PN681
You haven't made any subsequent request. It may be that you ask me to regard that document as a continuing request; you can make that submission. So far as the 2021 agreement is concerned, as a matter of fact there hasn't been any request made pursuant to that agreement.
PN682
MS ZHANG: Like you mentioned, Deputy President - you mentioned that you have made the amendment from the 2016 agreement to the enterprise agreement '21, so I do not know whether I am understanding correctly. Are you saying that we are all wasting our time because I could have - instead of following the orders requested by the Commission, I could have just - - -
PN683
THE DEPUTY PRESIDENT: Ms Zhang, with respect, it's not for me to advise you how to conduct your case. I made directions to facilitate the hearing and determination of this matter. I asked you to file documents, the employer was asked to file documents and that's the case you want to run. Now I'm raising with you some issues about the case you want to run, that's all, giving you an opportunity to comment on them. The Commission is not an advisory body. We're here in this jurisdiction to determine a dispute - - -
PN684
MS ZHANG: Thank you, Mr Deputy - - -
PN685
THE DEPUTY PRESIDENT: - - - by a binding determination and so you've put your case. Now I'm giving you an opportunity to address some issues that I have with your case.
PN686
MS ZHANG: Thank you, Mr Deputy President. I got the impression - whether I got the impression right or wrong from the last hearing - I wasn't sure whether I can call it a hearing or not - that my request was accepted, but now you are telling me that this may not be a valid request. I don't have any comment, your Honour. I believe that's within your responsibility to do that, but in terms of the final submission if you may allow me to finish, I will just make a short final submission regarding today's finding.
PN687
THE DEPUTY PRESIDENT: Yes.
PN688
MS ZHANG: Thank you. Given Parks Victoria is upholding the equity opportunity values among Aboriginals and equal genders, it's not reasonable for them not to uphold my religious belief and I should not be discriminated based on - - -
PN689
THE DEPUTY PRESIDENT: You're not making the request to work from home on the basis of religious belief. Your evidence is that you're making the request because you have to look after your children.
PN690
MS ZHANG: Correct. I would just say that I should not be discriminated or treated indifferent to whoever has been vaccination status, i.e., which is - - -
PN691
THE DEPUTY PRESIDENT: In answers to Mr Harrington you have said that you didn't make this request to work from home because of any vaccination status. That was the evidence and he asked you on several occasions, 'I put it to you that you're not being truthful about that, and you said, 'Yes, I am.'
PN692
MS ZHANG: I think I have been misunderstood in this case. If you may allow me to explain, I am saying that I got the impression that I have been treated differently in terms of my request for flexible working arrangement based on my vaccination status. That is why I bring this in as a - - -
PN693
THE DEPUTY PRESIDENT: Differently to whom?
PN694
MS ZHANG: Differently to as if maybe another employee was fully vaccinated and he or she - - -
PN695
THE DEPUTY PRESIDENT: 'Maybe' is not helpful. Do you have any evidence of any other employee who has requested to work from home full‑time who is fully vaccinated and has had that request granted?
PN696
MS ZHANG: Deputy President, I do not have the evidence of who is fully vaccinated because that doesn't really occur in my daily conversation with my fellow members, but - - -
PN697
THE DEPUTY PRESIDENT: Then how do you make the submission you're making that you have been discriminated against compared to other people?
PN698
MS ZHANG: Because during one of the online conference conducted by the CEO, in one of the Q and A sessions someone was asking about requesting for flexible working arrangement and the response given by the CEO was that he's aware that some request have not been fulfilled, but he still encourage other employees to submit such request. He also reaffirmed that working from home five days full‑time in that sense wouldn't be possible because everyone has to be vaccinated and everyone requires to attend workplace once the government mandate to attend workplace start.
PN699
So that gave me the impression that because of the vac status, I or maybe other employees - I'm not talking on behalf of other employees, I'm just talking on behalf of myself, that I have been discriminated or treated differently according to the vac status, because as soon as they see the request to work full‑time at home and then this person has not submitted - - -
PN700
THE DEPUTY PRESIDENT: Your status as a vaccinated person is not a protected attribute under discrimination law.
PN701
MS ZHANG: Sorry, I don't get it.
PN702
THE DEPUTY PRESIDENT: Discrimination law doesn't protect against discrimination per se. Discrimination law protects against discrimination on particular grounds or having particular attributes, or the absence of particular attributes. The status of a vaccinated person is not a protected attribute.
PN703
MS ZHANG: Correct, Deputy President. I am relying on the religious - - -
PN704
THE DEPUTY PRESIDENT: Yes, but you haven't made good that foundation. This is your belief, but in order for it to come within the religious beliefs exception it has got to be based on something other than your belief about what your religion says. You haven't actually produced any evidence about what your religion says about vaccinations, have you?
PN705
MS ZHANG: I thought we have discussed this just before break.
PN706
THE DEPUTY PRESIDENT: We discussed what you say your religion says, but there is no evidence about what your religion says about vaccination. You haven't produced any doctrinal statements from the head of your church, for example, about these things or - - -
PN707
MS ZHANG: This is such obvious evidence that I - - -
PN708
THE DEPUTY PRESIDENT: You say it's obvious, but it's not obvious to me.
PN709
MS ZHANG: I can produce it right now. I can point both of you into the pages of Bible where God says that choose life, don't kill.
PN710
THE DEPUTY PRESIDENT: We're talking about the position as to vaccination.
PN711
MS ZHANG: Correct.
PN712
THE DEPUTY PRESIDENT: As I tried to point out to you, at least so far as the Vatican is concerned there is no moral impediment to any Catholic taking any of the available vaccines.
PN713
MS ZHANG: Like I mentioned earlier - - -
PN714
THE DEPUTY PRESIDENT: Yes, and you said, well, you don't subscribe to the Vatican.
PN715
MS ZHANG: Yes.
PN716
THE DEPUTY PRESIDENT: So whichever arm or aspect of Christian doctrine to which you do subscribe, you haven't actually provided any evidence about what the doctrine - - -
PN717
MS ZHANG: Thank you for bringing this - - -
PN718
THE DEPUTY PRESIDENT: - - - says about vaccination. This is not a debate about abortion or about the use of foetuses in experimentation. This is a debate about vaccination and you say you have a religious objection to it. I'm just trying to understand the underpinning basis upon which you found that religious belief beyond you asserting that that's your belief.
PN719
MS ZHANG: Deputy President, I believe you are making a reasonable question. I thought I may not express myself clearly in that sense in the legal term, but as I very briefly mentioned to Mr Harrington about Dr Avery Jackson's comment during a church sermon, that such comment has occurred many times and I can only just find the recent comment about vaccination. Specifically he talks about it and masks - I think we were talking about masks, so I thought - - -
PN720
THE DEPUTY PRESIDENT: There is no religious objection to masks. You said it was because of concerns you had about it causing brain injury.
PN721
MS ZHANG: Correct. It's not a religious - how do you say - objection.
PN722
THE DEPUTY PRESIDENT: Let's stick to the - yes. Doctor - I've forgotten his name.
PN723
MS ZHANG: Avery Jackson.
PN724
THE DEPUTY PRESIDENT: He's not a minister of any church, is he?
PN725
MS ZHANG: He is the, what do you call, shareholder - board of director of Kenneth Copeland Ministry. He himself has his own Christian broadcast program.
PN726
THE DEPUTY PRESIDENT: In any event, I understand the point you make. I don't think we are going to advance it any further. Go ahead.
PN727
MS ZHANG: Sorry, what do you direct me to do?
PN728
THE DEPUTY PRESIDENT: I'm not directing you to do anything. I'm asking you to continue with your submissions.
PN729
MS ZHANG: Okay. I kind of forgot where I started, but thank you for letting me continue. According to the witness examination conducted with Ms Frances Li that the tasks that they allege Ms Zhang - which is myself - being absent, namely cheque printing, mail sorting and other asks required, physical financial records, her statement says this shouldn't be performed by a team leader. I believe I'm not in a position to judge what team leaders should or should not perform, but what I can say is that, as Ms Frances Li also mentioned, this is a teamwork and team tasks in that way.
PN730
Given that this is not frequent, occurring on a daily basis, this is a weekly task, this can be easily done by two additional - two other team members, which in my evidence that I have said wouldn't take more than one hour per week or two hours per fortnightly to perform such task. If the Parks Victoria alleging that this constitute reasonable business ground to refuse my request, if I had the request, I don't believe this is reasonable. Thank you, Mr Deputy President.
PN731
THE DEPUTY PRESIDENT: Yes, all right. Thank you. Mr Harrington?
PN732
MR HARRINGTON: Thank you, Deputy President. Can I first start by saying there are two primary bases upon which the application may be dismissed now after you have received the documentation, all the evidence and scrutinised the cross‑examination. The first basis is as you have adverted to, Deputy President, that there has never been a genuine or real dispute because dating back to 22 November 2021 the applicant had no entitlement under statute - section 62(2)(a) is the subsection you need to look at in terms of the 12‑month requirement - to make the request to receive the benefit of a flexible working arrangement under the NES, under the Fair Work Act.
PN733
When it was denied by letter dated 7 January 2022, within the first 12 months of employment, the denial was completely unremarkable and to be expected in circumstances where the trigger point of 12 months' service had not even been reached. Before I even get to the question of whether there is a dispute arising under the agreement, I'm just addressing the question of whether there was a genuine dispute at all between the parties.
PN734
Now, on this first submission I'm not saying when approaching the matter in this way there was a lack of bona fides by Ms Zhang. She sought to gain access to an entitlement. She did so on a postulated or postured basis of her child care arrangements, because I'm referring here to FL6, the 22 November written application, but she could never achieve that thing because she had no entitlement to it.
PN735
Again I repeat, that is a dispute at large in the workplace and in respect of a claimed entitlement under the Fair Work Act because you will see if you look at FL6, the covering email, Ms Zhang specifically invokes section 65. That is the way she framed it and so there could be no dispute in fact because there was no entitlement, and you have picked up on that. I think you're alive to that, Deputy President. That's the first basis.
PN736
The second basis - and perhaps I should have addressed it first because this is the more powerful and compelling basis - the dispute as it is defined in the form F10 is the real dispute, the true gravamen of the dispute that Ms Zhang ignited or identified back in November 2021 and then summarised in the form F10 on 15 December 2021. That dispute is, as is made clear in 2.1 of the form F10, all about a vaccination process.
PN737
It is all about an applicant who here today has revealed with clarity and with great certainty in her own position that she is anti‑vaccination, anti‑COVID‑19 vaccination for a range of reasons, perhaps including religious grounds, but is anti‑vaccination process. Did not vaccinate back then, did not double vaccinate as the CEO had mentioned back in his various missives - had not double‑vaccinated, would not and have not even now.
PN738
Ms Zhang is an intelligent woman. She knows because of what she was told - and this is the evidence before you - that she could not come into the workplace back in October and November last year if she adduced no evidence of her vaccination status or she declared, 'I am not vaccinated and will not be vaccinated', Ms Zhang has done what a few others in the community has done, she has constructed a well of so‑called legal arguments and legal positions including Privacy Act and the constitution and all those sorts of things and said, 'I don't have to tell you about a private medical procedure. I don't have to declare to you, the employer, my private medical information.'
PN739
Leaving all that to one side, it's just the fact that we know today under oath has not vaccination and will not vaccinate, and is opposed to vaccination. Now, that's what the dispute is about, because Ms Zhang knows she can't come to work. She also knows - and this is self‑evident from the 22 November application for flexible work arrangement to work at home full‑time - that if she does not get a flexible work arrangement to work at home full‑time, Ms Zhang knows she must return to the workplace to do her work, but she cannot because the relevant order - and I can send this to your changes, and I don't think this is controversial, Deputy President - under the Health and Wellbeing Act, number 5, is operating now and that order is the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No 5).
PN740
The effect of that order is a specified worker is - must not permit a worker to work for that employer outside the worker's ordinary place of residence unless the worker is fully vaccinated or an excepted person. Ms Zhang is a public sector worker and she is covered by that order, as is my client Parks Victoria. We will make a copy of that available, but it's not controversial that that order is operating in the community at this point and it shouldn't be controversial that it binds Parks Victoria. That is talking about now, but even last year Ms Zhang knew - she knew - she couldn't come to work.
PN741
So what has really driven the dispute? What is the bona fides, the true gravamen of the dispute? When you consider all the facts, all the circumstances, the obfuscation and the cross‑examination today, it's a person who holds an anti‑vax position and a seemingly anti‑mask position for children who, because she refuses to vaccinate she can't return to work and therefore has constructed a case based upon her child care responsibilities to work from home five days a week. That is what the real dispute is. That's what the real dispute was when identified at large in November 2021. It was the real dispute in December - the form F10 was filed on 15 December - and it continues to be the real dispute today.
PN742
Now, allied to those two bases the third submission I would make to you is that you ought to make a finding that Ms Zhang is not a witness of truth, is not credible on this question of what has animated the articulation of the dispute, what in fact is the real dispute. Ms Zhang continues to assert, 'No, no, no, it's about my children. It was about my children 22 November and it continues to be about my children.' Well, she has got three insurmountable hurdles in respect of that assertion and this is a question of whether she's telling the truth or not. The first is the form F10 and what it contains, and Ms Zhang was taken to that and in fact, Deputy President, you asked her questions about that.
PN743
The second is exhibit 1 and the first 23 paragraphs. Again, I cross‑examined on this. It is all about COVID vaccination mandate and what it really is saying, if you want to interpret it globally, broadly, is, 'It's unfair that they're making me vaccinate. I won't vaccinate and here are all the good reasons why I shouldn't have to vaccinate. It's either unlawful or coercive behaviour and I'm not going to do it', and therefore it follows, in my submission, we're in dispute. That's correct, paragraphs 1 to 23 of exhibit 1 merely picks up on what the form F10 contained on 15 December and, most importantly, it lifts the fig leaf on what the 22 November 2021 application was really about. It was not about a three and an eight‑year‑old child. It's really about this.
PN744
Now, on the question of credit‑finding, if you were to not believe Ms Zhang when she says to you, 'No, it's really about my children', the effect of the adverse credit finding is that - well, it breaks in two ways, in my respectful submission. You will make a finding as to what the real dispute is about, which is part of your role. On any view you must determine what the real dispute is between the parties, Deputy President. If you find that the real dispute between the parties is as I have put it, then Ms Zhang has not been honest in her evidence before the Commission and that is important.
PN745
Secondly, you can dismiss the application - I refer back to the second ground I addressed you on. You can refer back because that dispute is not a dispute that arises under the agreement. The dispute about vaccination status and refusal to work because of vaccination status, that's not something that you have jurisdiction to determine if that's the real dispute and you determine it that way, and you should; so the credit finding does matter.
PN746
Can I then move to the fourth proposition that I wish to address you on and this is in our written opening submission, or our outline of submission. If the Commission goes to the Parks Victoria Enterprise Agreement 2021, you will see at clause 60 it says 'Right to request flexible working arrangements' and that's the clause that on one view we're working with, but we've made the submission also that clause 61 deals with something perhaps similar but is separate to (audio malfunction) basis for a dispute, which is home based work:
PN747
Home based work arrangements may be agreed between Parks Victoria and an employee on a case‑by‑case basis.
PN748
Ms Zhang says, 'No, my case is about clause 60. My so‑called dispute arising under the agreement is a clause 60 dispute.' On one complexion it's possible that's the case, but clause 60 is very general in terms of a right to request flexible working arrangements and the way in which it imports the section 65 FW Act considerations.
PN749
THE DEPUTY PRESIDENT: Just on that, Mr Harrington, it's open to me, is it not, that given clause 60.2 of the agreement that at the time she made a written request, albeit by reference to the NES, once the - sorry, when this agreement came into operation, the request made on 22 November in writing had not been responded to, so it was an ongoing or continuing request.
PN750
MR HARRINGTON: That's right.
PN751
THE DEPUTY PRESIDENT: Once this agreement came into operation she was eligible to make that or a substantially similar request under the enterprise agreement because she had met the first threshold in 62.
PN752
MR HARRINGTON: 60.2, the completed probation?
PN753
THE DEPUTY PRESIDENT: Yes.
PN754
MR HARRINGTON: Yes.
PN755
THE DEPUTY PRESIDENT: So she was eligible to apply under the agreement on or after the 15th or the - I can't remember when this agreement came into operation - 23 December 2021.
PN756
MR HARRINGTON: Yes.
PN757
THE DEPUTY PRESIDENT: On or after that date she was eligible to make a request. The request that she earlier made was a continuing request and, putting aside the niceties of whether it was under the NES or otherwise, can be read as a request made in writing pursuant to 60.3. The employer then responded to that request in January as it did, so that there is then engaged a dispute about whether or not the refusal was on reasonable business grounds. That's a construction that is available to me on the facts, is it not?
PN758
MR HARRINGTON: That is a construction available to you on the facts and that would effectively - to use blunt language - demolish the first point I addressed you on.
PN759
THE DEPUTY PRESIDENT: Yes, I understand.
PN760
MR HARRINGTON: Which you were talking - - -
PN761
THE DEPUTY PRESIDENT: Yes, yes.
PN762
MR HARRINGTON: Discussing with Ms Zhang about.
PN763
THE DEPUTY PRESIDENT: Yes, but it wouldn't undermine your other point that the dispute is not really about - or the dispute is really about Ms Zhang's status as a non‑vaccinated person and not about - yes, I understand that.
PN764
MR HARRINGTON: We press that. I definitely press that.
PN765
THE DEPUTY PRESIDENT: That applies with equal force to a clause 60 matter, as it does to the earlier one.
PN766
MR HARRINGTON: Yes, because - sorry, I just want to address you on one point very quickly. You're right to observe that and responded to by Parks Victoria within 14 business days. You would also construe this - although it's not within 14 business days, but you would construe the denial, the refusal, of 7 January, the rejection FO8, as perhaps compliance with 60.3.
PN767
THE DEPUTY PRESIDENT: It probably is, given that this agreement was approved on the 23rd. The 24th and 25th, the 26th and 27th were public holidays in Victoria, therefore not business days.
PN768
MR HARRINGTON: Yes.
PN769
THE DEPUTY PRESIDENT: And the 1st and the 2nd - well, the 1st and it might have been the 3rd this year, I can't remember because of the substitutions, were also public holidays, so that takes six days out of that period; so you've got eight days to the end of the month and then a further seven for the reply, less the public holidays. It would seem to me that it was made within 14 business days.
PN770
MR HARRINGTON: On construing it that way, yes, it was.
PN771
THE DEPUTY PRESIDENT: It says business days, so - - -
PN772
MR HARRINGTON: It says business days as opposed to weekends and business days, if they're public holidays, are not business days. The point I wish to bring to your attention is that there is an argument that the 7 January rejection is compliant with 60.3 for - - -
PN773
THE DEPUTY PRESIDENT: Yes. If I construe the facts that way, that's what I'm inclined to find; that the employer in fact complied with that obligation.
PN774
MR HARRINGTON: The real killing fields of the dispute, as that expression tends to get used, under clause 60 is 60.4.
PN775
THE DEPUTY PRESIDENT: Yes.
PN776
MR HARRINGTON: Which is on reasonable business grounds.
PN777
THE DEPUTY PRESIDENT: Yes.
PN778
MR HARRINGTON: But can I go back to 60.1, because I'm addressing you on my second - - -
PN779
THE DEPUTY PRESIDENT: Which then engages with the business grounds in 65.5(a).
PN780
MR HARRINGTON: Yes. The parties have determined that all roads should lead back to the so‑called statutory test.
PN781
THE DEPUTY PRESIDENT: Yes.
PN782
MR HARRINGTON: And I understand that. Could I go to what I referred to as my second ground, which is the so‑called bona fides or the true gravamen of the dispute. I'm putting to one side the so‑called knockout point given the timing of last year. 60.1 also provides and is relevant to this consideration:
PN783
An eligible employee may request a change in working arrangements relating to the following circumstances: (a) The employee is the parent of or has responsibility for the care of a child -
PN784
okay, and then it goes on, 'The employee is a carer', et cetera. I interpret Ms Zhang to say or assert that she has invoked jurisdiction or has a right or entitlement under 60.1(a); 'a child who is of school age or younger.' Now, superficially that's the way her case must be advanced, but going to the so‑called true gravamen and bona fides of the dispute as articulated, 60.1 does not entitle an employee to make a request for changing working arrangements when the true gravamen, the true nature of the dispute, is in fact a dispute about refusal to vaccinate and impending inability to return to the workplace.
PN785
That doesn't give you a right under 60.1 for a flexible working arrangement and that's the important point, in my submission, Deputy President. If you find on the evidence before you, on the facts and if a credit finding is required, 'Look, 22 November it says the request about the children, but the form F10 doesn't even mention the children. I've now received evidence and I know that Ms Zhang did not vaccinate, will not, has a whole lot of views that she's entitled to hold on a personal level about this.' If you find the request for the flexible working arrangement was almost entirely if not wholly driven by those considerations, then 60.1(a) as a question of fact is not properly invoked.
PN786
THE DEPUTY PRESIDENT: Yes, I understand that.
PN787
MR HARRINGTON: However, 61 is still there - and I was about to say it might be an outlier; it's not an outlier. The submission that we make is that what Ms Zhang was in fact seeking here, for whatever reason, was home based work. She wanted a home based work arrangement. Why did she want it? Well, I'll go back to the submissions I just made; because she needed a home based work arrangement because did not and would not vaccinate, knew that there is a chance she would be called in to work or required or directed to come to work, knew that she couldn't in the State of Victoria under the CHO directions as they existed last year and now the order number 5 - knows that she can't go into the workplace. That's why she wanted the home based work arrangement.
PN788
MS ZHANG: Deputy President, I wonder if I may comment - - -
PN789
THE DEPUTY PRESIDENT: Not now. You will have an opportunity to reply to Mr Harrington's submission when he is finished, so please don't interrupt. Thank you. Yes, Mr Harrington.
PN790
MR HARRINGTON: If there is an application for a home based work arrangement, if it's framed that way, there is actually a broader canvass and a much broader discretion for you, Deputy President, because you would say, 'I find that really 61 is operating here. It was an application for a home based work arrangement on this specific basis and the form F10 informs me and the cross‑examination really assisted me to understand this.'
PN791
Given that, the employer has to approach these things on a case by case basis. The employer has refused that arrangement. In its letter of 7 January it set out the reasons for its rejection. Now, those reasons for rejection are addressing in a way the clause 65 considerations, but it would still be open for you to say, 'Insofar as the employer has refused a clause 61 home based work application, that's entirely acceptable and understandable in the circumstances because it does not want this particular employee or perhaps any employee working from home five days a week, particularly where it's going to likely cost the employer some money, cause disruption, force an allocation of tasks onto other employees and facilitate an employee who refuses to vaccinate (audio malfunction).'
PN792
It doesn't have to agree to that. That's the general test. That will be one matter that, in my respectful submission, you will need to determine. We have addressed this in our outline of argument; is it clause 60 or is it in truth clause 61? Now, if indeed that's rejected and it is a clause 60 analysis that you embark upon - and I'm really moving here to 60.4, on reasonable business grounds - Ms Li was a compelling and honest witness, and her evidence should be accepted, in my respectful submission.
PN793
She explains, Ms Li, in her statement - and it wasn't particularly challenged - why it is that it simply is not a workable model for this employer to have one of its team members, an FTS team member doing everything, for a temporary part, doing everything from home remotely because, for a few reasons. One, it forces or causes the reallocation of certain tasks to others within that team, but particularly it imposes upon the team leader extra lower order, lower grade duties that the team leader should not have to perform, and that's not the way the workplace is structured as Ms Li gave evidence to. And in my respectful submission this is not the subject of any real contest.
PN794
One clear task that was required is the cheque payment process that was physical documentations involved in that, printing off cheques, putting them in envelopes. Whether it's one per cent of the task or not, or whether it's two hours a fortnight, the fact is, if a job that Ms Zhang was engaged and employed to do, and she's not there to do it if she's working from home, she can't do it, and this is an important theme in this case, that task, that duty, like the DX or postal duties which is on roster, has to be reallocated to others.
PN795
With respect, there was one very telling part of the cross-examine of Ms Li by Ms Zhang, right near the end. I think it was the last question. Quote, 'These tasks could be performed by others, other than the team leader. They could be performed by others.' See, Ms Zhang's approach to this is, well, to the extent that you, Parks Victoria, can demonstrate there's tasks required under my PD, under my contract that I can't do remotely, other people can just do them. You can just get other people to do them.
PN796
In that sense, and I say this respectfully in a metaphorical sense, Deputy President, the employee tail is wagging the managerial dog, an employee who is saying, well, you just can reallocate all those tasks to other people, they'll just have to step up and do that work. In Ms Li's statement there is clear evidence about that which is, well, the difficulty there is the team leader is feeing an added pressure to paper over the gaps to do this extra work, to pick up the extra tasks. That puts pressure on her and it takes away from the team leaders (indistinct) I won't do other work that she has to do.
PN797
So, whilst it's incredibly flexible for Ms Zhang to allow her to work five days week, it (indistinct) an inefficiency and an inflexibility into the workplace, concomitantly if the dispute is determined as Ms Zhang would have it determined and that she's granted five days pure remote working by this Commission. Just on that point there was more evidence from Ms Li in cross-examination where she referred to a real life example where the financial controller was seeking information and the documents were not available to Ms Zhang at home and it created an inefficiency in the workplace.
PN798
It might sound a bit humdrum, a bit everyday, just to refer to one example like that but it is a shining example of the reality of five days a week working from home, not four days, not four and a half days, but five days, purely 100 per cent remote work (indistinct) Ms Zhang where she was otherwise contracted to do them, she would not do them because she's at home and it imposes the inefficiency, and perhaps the cost onto the employer.
PN799
On that costing aspect Ms Li gave uncontroverted evidence that there is a prospect that if the Commission does make the order, the organisation will have to backfill the FTS position, not necessarily with a full-timer but with a part-timer, and if you were to hand out your judgment in this financial year, Deputy President, and I'm sure you probably will, it's March, there is no money in the budget for that. So that is a cost or an impost associated with this so-called flexible working arrangement.
PN800
If I can then draw your attention to 65.5(a) because of the agreement, the agreement itself refers to the expression, 'reasonable business grounds', and then it says, 'In accordance with the provisions of section 65 of the Fair Work Act.' Now 5(a), without limiting what are reasonable business grounds for the purpose of subsection (5), reasonable business grounds include the following.'
PN801
So, it's an expansive extra definition - iteration, I should say, a), that the new working arrangement requested by the employee would be too costly - we've educed some evidence about that, Deputy President. Ms Li said it will be costly, and my submission is it will be too costly when it is not budgeted for if a backfill position is required; b), that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee.
PN802
On that ground, that's probably close to mutual consideration. There's a capacity to change but you've heard already because this has been happening, and that's what is interesting about this so-called dispute notification factually. This is not Ms Zhang saying, I want this and we've refused it, and she's now batting before the Commission to achieve it. Ms Zhang has had the benefit of five days at home since last year, so you've got evidence of the actual effects of this arrangement and Ms Li gave some powerful evidence about that, which is the team leader is feeling under pressure to pick up the tasks, to reallocate the tasks. And so whilst there might be a capacity it comes at a cost and that, in my submission, that is yet another reasonable business ground, a consideration for you, Deputy President.
PN803
Then it says at 5(a)A(c) that 'it would be impractical to change the working arrangements of other employees or recruit new employees to accommodate.' And I address that, and I think you know where I'm going here is, it is impractical to change the working arrangements of other employees because the team leaders should not have her position description and duties changed because Ms Zhang wishes to stay home because she will not vaccinate.
PN804
Furthermore, it is impractical to recruit new employees in a backfill prospect, or proposition because we're not at the end of the financial year and the full force and effect of the absence of Ms Zhang is already being felt, and Ms Li has given evidence that they are seriously considering this extra position and they don't have the funds in the budget for that. At 5A(d), 'The new working arrangements requested by an employee would be likely to result in a significant loss in efficiency or productivity.'
PN805
Deputy President, it's a matter for you to give consideration to, and an evaluative assessment on that question of significance. Is it a significant loss in efficiency or productivity. My respectful submission is there is loss of efficiency and productivity. The question is, is it significant. That will be a weighing of all the factors. (e) is, 'a significant negative impact on customer service.' Again, that word, 'significant' is used. My submission is at a minimum there would be negative impact on customer service, at least arising out of the cheques and the posting out of cheques, in terms of accounts payable and the like, but again I'll leave that for you to consider.
PN806
So, if you get to that analysis on reasonable business grounds, it's my respectful submission that there are reasonable business grounds, relying up on the evidence of Ms Li, to refuse the five day a week arrangement. And one (indistinct) on that, Deputy President is, and it's not strictly in 5A at section 65, but that's very much a nonprespective(sic) set of considerations. The employer in this instance does have, and has promulgated and is promulgating a hybrid working arrangement policy, so it's not as if you have an employer that comes before you that has refused, and that Ms Li is desperately trying to get some days working at home. You have a set of circumstances before you that since, I think it's about 23 September which is getting close to six months, Ms Zhang has had the benefit of five days a week at home and has not been directed or ordered to attend in the workplace.
PN807
And in that interim period, and there was evidence about this, there is the hybrid work model which is FL3 in the documents before you, that hybrid work model necessarily allows employees to, in my respectful submission, generously allows employees to work from home for - I don't want to get this wrong but I think it's up to three days a week, and that is a relevant consideration, as well, because you can in determining this dispute, if you go all the way to the merits of it to the merits determination, say no, not five days at home, and that's my submission, you should make ultimately.
PN808
That doesn't mean there are no days at home for Ms Zhang if she needs days at home. There's a real prospect and a real capacity in this workplace because of that hybrid arrangement, to work from home. And this is, as I said, it's FL3 and there's a number of chief executive updates but the most recent was 19 November where it says:
PN809
We are still yet to hear from the government about a hybrid working date. Once this happens more information will be shared. As a reminder, 'hybrid working' consists of a minimum of 60 per cent working from the office based on government advice.
PN810
So that's actually three days in the office, two days at home. That's the, I'll call it the standard arrangement that an employee can make application for. But that's not to say that it could be more than that for two days at home. What this is, what this application is about if you accept about flexible working arrangement because clause 60.1(a), 'care of a child who is of school age or younger', if you accept that that's what the dispute is really about, and my submission is it is not, but if you so that's triggered, there is still capacity in this workplace for a flexible working arrangement. It's just that ultimately five days is a bridge too far and is a request that was properly refused on reasonable business grounds in accordance with that expression at 60.4 and section 65(5)A of the Fair Work Act 2009. Unless I can assist you further, those are the submissions.
PN811
THE DEPUTY PRESIDENT: There are two matters, Mr Harrington. Firstly, in relation to the flexible work arrangements under the CMES(?) it seems to me that the circumstances which trigger an entitlement to make a request, and the notion that the request is about an alteration to working arrangements which may include changes in hours or changes in the patterns of work or changes in the location, are designed to enable employees to make a request to work different working arrangements so that they can carry out their parental or caring responsibilities, in this case more readily at a time when they're not working, as opposed to engaging or making flexible arrangements so that whilst working the employee can care for children.
PN812
MR HARRINGTON: Yes. The first point is that with this new home schooling arrangement for an eight year old, that definitely confuses the landscape - - -
PN813
THE DEPUTY PRESIDENT: That's the issue that I wanted to raise with you. When I look at clause 10.1 of the agreement and the relevant provision which allows me to consider reasonable grounds refusal, is set out in the last sentence of the first paragraph this includes, 'a dispute or grounds about whether Parks Victoria had reasonable grounds.' Am I able to conclude from those words that my assessment is about whether Parks Victoria had reasonable grounds for refusing the request, whether it articulated those or not, or am I confined to the reasons given by Parks Victoria for refusing the request?
PN814
And the reason I raise it is this. It seems to me, at least on one level given the basis upon which the applicant made her request, that is, her eldest daughter wasn't going to go to school if there was a mask mandate and that she would be home schooled, and so a factor that I think would usually be relevant in the consideration is whether an employer has the capacity in that context to properly supervise an employee to ensure that the employee is devoting the whole of their time and attention during working hours to work, and that it's very difficult to undertake such an assessment whilst the employee is not at work but is at home. Do you follow? That's not a reason the employer articulated.
PN815
MR HARRINGTON: No. And can I answer the threshold question and maybe I don't then have to answer you on that. The threshold question in my respectful submission can be answered like this. It is upon the evidence educed before the Commission that the Commission will make an assessment of reasonable grounds, so it's when the Commission is fully seized of all the information. Because the employer simply may not know something.
PN816
THE DEPUTY PRESIDENT: Yes.
PN817
MR HARRINGTON: And so it's what is put before you that will help you determine the dispute. Because ultimately we are in a private arbitration scenario where the Commission can only determine the dispute on the material educed before it by the parties, not on the extraneous material. But that implicitly means, as long as it's relevant and admissible material you will have regard to all of that material before you to make your determination in terms of resolving the dispute. And the analogy, Deputy President, I draw there is with the orthodoxy or the received wisdom in the unfair dismissal jurisdiction - - -
PN818
THE DEPUTY PRESIDENT: No, in relation to valid reason, Mr Harrington.
PN819
MR HARRINGTON: In relation to valid reason which is, look, the employee may have dismissed for that reason but the material before the Commission at the forensic stage of having the context about whether there was a valid reason, that's what the Commission must have regard to. That's the analogy I draw.
PN820
THE DEPUTY PRESIDENT: I see.
PN821
MR HARRINGTON: And so my answer to your question is, you will have regard to all relevant and admissible evidence in the private arbitral context in which you are determining the dispute as to whether or not the employer had, and that's the past tense in 10.1, reasonable ground, or has reasonable grounds, and the reason that's important and I'll just flesh it out in this way, the reason that's important is because it is manifestly obvious when one has regard to the application that Ms Zhang made it was, at least in my submission, superficially focussed on the flexible working arrangement because I've got children around.
PN822
But what it didn't say back in November, and what has not come out in my submission, till really today, very clearly is, I am home-schooling my eight year old for particular reasons, and that's important we know the reasons, I'm home schooling, and in terms of that home schooling it follows Ms Zhang has a real responsibility for the childcare aspect of overseeing the care of her child who is not at school, five days a week, and overseeing the work that must be done. Ms Zhang was engaged to come to the office and it was customary for her to come to the office during normal business hours, which tend to correlate with normal schooling hours.
PN823
That is also a relevant consideration for you because there is very much a sense of a split focus if as a mother, or a father but in this case as a mother - as a parent, I should say, you're having to home school one child full-time, and I think but I'm not sure whether the second child is at home too, but at least home school one child, full-time and carry out during business hours, your full-time business and responsibilities.
PN824
I'm not saying that's impossible but it's a very difficult thing to achieve, in my respectful submission. And your point, Deputy President, is how does an employer even begin to regulate, oversee and authorise and direct that relationship because of the remote nature of it, because the employer or representative employer is simply not in the room. The team leader is not there and can't see what's going on. They just have to hope that the productivity remains.
PN825
There was a hint in the evidence from Ms Zhang where she said, well, I can get the work done at night. That may work in respect of some work, it may not work in respect of all work, and we do know that while it might not strictly be a physical client facing role that Ms Zhang does, she is on the email and the telephone when necessary with clients, dealing with people during these working hours.
PN826
THE DEPUTY PRESIDENT: But in any event, the request that was made wasn't a request for the authorisation of hours that she could work from 6 pm onwards, for example. It was a request for working from home, presumably - - -
PN827
MR HARRINGTON: For full-time, every day.
PN828
THE DEPUTY PRESIDENT: Presumably consistently with the business hours the respondent operates.
PN829
MR HARRINGTON: That's correct. And I'll return to my point if I can, which is it's only through the process of producing the material that was filed in this Commission and then actually hearing the evidence today that the full picture gets drawn of both the dispute, the nature of the dispute, and also the reality of why it is the flexible working arrangement has been sought. Nowhere do I read in the material but I will stand corrected, 'I'm home schooling an eight year old because I won't send that eight year old to school to wear a mask because it might cause her brain damage.' Nowhere do I find that in the material. It came out today. It emerged today in its clear form.
PN830
So my submission to your first point is that, and I'm not sure if there is a second point but to your first point, is that you will have regard to everything that's come before you today.
PN831
THE DEPUTY PRESIDENT: Yes, all right. Thank you, Mr Harrington.
PN832
MR HARRINGTON: Was there a second question? I think you said you had two points but I'm not sure if I've answered them.
PN833
THE DEPUTY PRESIDENT: I think the two points merged into one. The first was the underlying purpose for section 65; and the second which flowed from that was what the words in the agreement mean in relation to whether the employer had reasonable grounds, and my assessment of those. And as you have pointed out, and certainly this is my preliminary view, that I'm not confined to the reasons that the employer gave that it's an objective assessment about whether at the time of the refusal the employer had reasonable business grounds, and if there's evidence to support those. And I am entitled to take into account matters which are not strictly set out in the employer's refusal letter.
PN834
MR HARRINGTON: And sorry if I was not clear about this, to pick up on your point, again within the rubric of section 65(5)(a), it is a reasonable business ground for an employer to have consideration to the fact that an employee working full-time from home who is also apparently fully responsible for a home schooling arrangement, may not give the attention and focus to the full gambit of duties required of that employee. That is again a reasonable business ground that could emerge in that circumstance.
PN835
THE DEPUTY PRESIDENT: Yes. And the examples in 5(a) are a non exhaustive list.
PN836
MR HARRINGTON: That's absolutely right, without limiting what are reasonable business grounds for the purposes of subsection (5). 'They include the following.' So it's expansive, it's beyond simply those considerations.
PN837
THE DEPUTY PRESIDENT: Right. Yes, thank you. Ms Zhang, what would you like to say in reply?
PN838
MR ZHANG: Thank you, Mr Deputy President. In reply I just want to continue the discussion Mr Harrington has raised about reasonable business grounds in terms of my responsibility of work and also home schooling. One good example of that is today, for example, I have this meeting with the Commission as my husband is looking after the home school matters, and that's always the agreement with my family but I didn't know that Mr Harrington was attacking that point saying that I cannot fully concentrate on work and fully operate home school.
PN839
I'm not in the capacity to do that. What I meant in terms of my responsibility of home school, looking after my children, is our substitute, my husband, who is the main responsibility or party, to conduct the home school but when he has to go out and do his own business that I have to be present given the (indistinct) are young so that I am not able to leave them at home with no attendance. So, my responsibility in terms of home school is mainly the attendance, that's the physical presence that I require for my children and - - -
PN840
THE DEPUTY PRESIDENT: I don't really understand how it is on that basis you could justify a request that you work from home five days. Shouldn't your request for flexibility have been that you be permitted to work from home on such occasions as your husband is not able to supervise the home schooling of your daughter?
PN841
MR ZHANG: Thank you, Mr Deputy President, because my husband goes out on a frequent basis. I mean, like, you don't - I don't know - he wouldn't know when and what time he will be required to go out, so that's why I - I don't think the team leader would be happy or feel - be happy for me to see the request that, okay, I have to leave office and work from home this afternoon and on the random days. So that's why I has - I was thinking five days working from home. Actually, not really five days that we're focussing on because I have been permitted to do two days, anyway, and just additional there days - - -
PN842
THE DEPUTY PRESIDENT: My point is, your request could have been, well, in relation to the two days I already have, rather than working from home two days in block, can I ask you for flexibility so that I can determine when I will work those two days, so that you can accommodate absences of your husband, who you say is the person primarily responsible for home schooling your daughter.
PN843
MR ZHANG: Yes, that would be a much better way to frame it. I didn't think about it, because I thought they are pretty much straight in terms of office hours that I - like I mentioned earlier, I tried to raise the request of the flexible working arrangement much earlier on. The email (indistinct) was on 28 February 2021, so just two - while two months after my commencement I raised this request for the flexible working arrangement in terms of exactly as you framed, but the request was unfortunately declined, which I understand the reason why, being a new employee. But now I have, you know, more experience and more work training given that I did(?) have an opportunity to attend the office, not that I didn't want to for whatever the reason Mr Harrington was framing, but the main point that I was trying to make is that I have attempted much earlier on, but given the entire year after a few months, especially October, September, Oct - what I'm talking about - August, September, October, November, the pressure was on in terms of what I have experienced, coercion and discrimination, that I understand what the Parks Victoria is coming from but I also would like to rely on my statutory entitlement that we have been discuss about, and to discuss about this reasonable business ground which as Mr Harrington and also Ms Frances Li mentioned - - -
PN844
THE DEPUTY PRESIDENT: But the question is not whether the employer had reasonable business grounds to refuse any request for flexible work arrangements. The question is whether in the circumstances the employer had reasonable business grounds to refuse your request to work from home five days a week.
PN845
MR ZHANG: I see, thank you. So that's what I - - -
PN846
THE DEPUTY PRESIDENT: That was your request. Your request wasn't to work at home two days a week or three days a week, it was to work from home for five days a week. Your request wasn't, I need flexibility in the days on which I work, so perhaps I'll work three hours from home each day which will be the equivalent of two days, which will accommodate the needs for my husband to leave from time to time and I could supervise. That wasn't the request.
PN847
MR ZHANG: Thank you, Deputy President. That was the exact request I raised in February 2021 which was rejected because the reason they gave me that they are not able to accommodate such flexibility, as I wasn't in the position to raise it again because I know that they won't like this kind of sandwich(sic) model. So, as my only option in terms of looking after my children in that same - - -
PN848
THE DEPUTY PRESIDENT: But whether they would have or would not have is kind of beside the point. The only request that they rejected formally was one to work five days a week, in circumstances where on your contention you're not the primary person responsible for the home schooling of your children, your husband is. And really, your request is so that it enables you to be at home when at short notice your husband disappears from home and goes off to work somewhere else. But that's - - -
PN849
MR ZHANG: Exactly. That's what I would appreciate, as well. So, Deputy President, thank you for putting that in such a good way. So, do you need anything else from me?
PN850
THE DEPUTY PRESIDENT: No. You can say whatever you like by way of reply, to anything else in Mr Harrington's - - -
PN851
MR ZHANG: Yes, I was - thank you. That's the first point we discussed. The second point was Mr Harrington, his first point that he kept saying that - or making his point that I was making this request, my five days working request, based on the true underlying intention which is to avoid the COVID vaccine, which I don't believe is true given that I have raised such flexible working requests much earlier on, and I do have to look after my children like Mr Deputy President mentioned that in the - a bit flexible where are sandwich(?) time construction way. So I believe that your statement of that is not true and - and I - that's all, thank you.
PN852
THE DEPUTY PRESIDENT: Yes, all right. I propose to reserve my decision and I'll publish my decision in due course and send it to the parties when it's ready. I thank all the parties for their contribution and their representatives for their contribution during the course of the hearing. We are adjourned. Have a good day, thank you.
ADJOURNED INDEFINITELY [3.38 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MARINA ZHANG, AFFIRMED........................................................................... PN75
EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT......................... PN75
EXHIBIT #1 SUBMISSIONS TOGETHER WITH ANNEXURES AND ATTACHED EMAILS................................................................................................................................... PN79
EXHIBIT #2 RESPONSIVE DOCUMENT TO CFO STATEMENT DATED 15/03/2022 COMPRISING 32 PARAGRAPHS....................................................................... PN95
EXHIBIT #3 BUNDLE OF EMAILS DATED 16/11/2021; 14/12/2021 TOGETHER WITH LETTER DATED 14/12/2021 FROM MS ZHANG TO MS STROBEL......... PN104
CROSS-EXAMINATION BY MR HARRINGTON.......................................... PN113
THE WITNESS WITHDREW............................................................................. PN446
FRANCES LI, AFFIRMED.................................................................................. PN463
EXAMINATION-IN-CHIEF BY MR HARRINGTON..................................... PN463
EXHIBIT #4 WITNESS STATEMENT OF MS FRANCES LI COMPRISING 47 PARAGRAPHS AND EIGHT ANNEXURES................................................................................. PN522
CROSS-EXAMINATION BY MS ZHANG........................................................ PN534
THE WITNESS WITHDREW............................................................................. PN574
FRANCES LI, RECALLED................................................................................. PN576
CROSS-EXAMINATION BY MS ZHANG, CONTINUING........................... PN576
THE WITNESS WITHDREW............................................................................. PN626